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CQJ17 v Minister for Immigration & Anor [2020] FCCA 1438 (30 June 2020)

Last Updated: 30 June 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQJ17 v MINISTER FOR IMMIGRATION & ANOR


Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed in part and other claims found not to be well-founded – whether the Authority erred in rejecting new information or overlooked an element of the applicant’s claims considered – no jurisdictional error.


Legislation:

Cases cited:
AUH17 v Minister for Immigration [2018] FCA 388
AUS17 v Minister for Immigration [2020] HCATrans 55
BRA16 v Minister for Immigration [2018] FCA 127
BVD17 v Minister for Immigration [2019] HCA 34; (2019) 93 ALJR 1091
BVZ16 v Minister for Immigration [2017] FCA 958; (2017) 254 FCR 221
CAQ17 v Minister for Immigration [2019] FCAFC 203
CHF16 v Minister for Immigration [2017] FCAFC 192; (2017) 257 FCR 148
DYS16 v Minister for Immigration [2018] FCAFC 33; (2018) 260 FCR 260
Goundar v Minister for Immigration [2016] FCA 1203; (2016) 160 ALD 123
Malek Fahd Islamic School Limited v Minister for Education and Training (No. 2) [2017] FCA 1377
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534
Minister for Immigration v AUS17 (2019) 167 ALD 313
Minister for Immigration v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111
Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration v WZAPN [2015] HCA 22; (2015) 254 CLR 610
Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323
NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Plaintiff M64/2015 v Minister for Immigration [2015] HCA 50; (2015) 258 CLR 173
Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16; (2018) 264 CLR 217
Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
SZTEQ v Minister for Immigration [2015] FCAFC 39; (2015) 229 FCR 497


Applicant:
CQJ17

First Respondent:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:
IMMIGRATION ASSESSMENT AUTHORITY

File Number:
SYG 1868 of 2017

Judgment of:
Judge Driver

Hearing date:
3 June 2020

Date of Last Submission:
17 June 2020

Delivered at:
Sydney

Delivered on:
30 June 2020

REPRESENTATION

Counsel for the Applicant:
Ms U Okereke-Fisher

Counsel for the Respondents:
Mr B Kaplan

Solicitors for the Respondents:
Minter Ellison

ORDERS

(1) The application as amended on 25 November 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1868 of 2017

CQJ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent


REASONS FOR JUDGMENT

Introduction and background

  1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 30 May 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
  2. The following statement of background facts is derived from the submissions of the parties.
  3. The applicant is a citizen of Sri Lanka, who arrived in Australia on 21 October 2012 and is an unauthorised maritime arrival. On 19 December 2015, the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. The applicant subsequently applied for a Safe Haven Enterprise Visa (SHEV) on 24 February 2016.[1]
  4. On 25 October 2016, the delegate refused to grant the applicant a SHEV.[2] The delegate's decision was a “fast track reviewable decision” and was referred by the Minister to the Authority for review.[3] On 30 May 2017, the Authority affirmed the decision under review.[4]

Applicant’s claims

  1. The applicant claimed to fear harm from the Sri Lankan authorities or members of the Karuna Group on account of his Tamil ethnicity, his imputed support of the Liberation Tigers of Tamil Eelam (LTTE), his perceived wealth, his activities with the Tamil National Alliance (TNA), and as a failed asylum seeker who departed Sri Lanka illegally. In support of those claims, the applicant recounted the following events:
    1. in 2006, he and his father were forced to undertake training with the Karuna Group where the applicant was beaten before he escaped;
    2. in 2007–2009, he and his family were displaced and questioned about LTTE links and the applicant was detained and beaten by the army on two occasions causing him to move to another area;
    1. in 2012, he supported a TNA candidate in upcoming elections after which he was pursued, his father was beaten, and he went into hiding until his departure;
    1. in 2012, he was seriously beaten in relation to extortion attempts; and
    2. after his departure, the authorities visited his family inquiring about him.

Authority decision

  1. The Authority rejected the applicant's claims on the basis of adverse credibility findings and because they did not give rise to a real chance of serious harm or a real risk of significant harm. The Authority made the following key findings:
    1. he was not forcibly recruited because the details of his claim were inconsistent with country information;[5]
    2. in 2007–2009, his family was subject to questioning and he was detained and beaten by the army;[6]
    1. while he supported a TNA candidate in the 2012 election and was harassed and threatened as a result,[7] the Authority did not accept he was pursued after the election causing him to go into hiding or that his father was beaten;[8]
    1. he was not beaten in connection to any extortion attempts;[9] and
    2. he was not pursued after his departure.[10]
  2. In light of country information and the applicant's profile the Authority found that the applicant would not face serious harm on account of his Tamil ethnicity,[11] any imputed support of the LTTE,[12] his activities with the TNA,[13] or as a failed asylum seeker.[14] The Authority was not satisfied that the applicant's family's exposure to extortion amounted to serious harm.[15] Additionally, the Authority found the applicant would not face harm as a Hindu or on account of his religious activities.[16] In relation to the applicant's illegal departure, the Authority found that any experiences or penalties on return would not amount to serious harm and that the applicant would face a “generally applicable law”.[17]
  3. For those reasons, and considering the applicant's claims cumulatively,[18] the Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act.[19] For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion.[20] In this context, the Authority also made findings to the effect that the applicant would not face significant harm on account of his family's perceived wealth and experience of extortion[21] or his illegal departure.[22]

The current proceedings

  1. These proceedings began with a show cause application filed on 15 June 2017. An amended application was filed on 12 January 2018. The matter was initially docketed to Judge Barnes but, at a callover on 12 March 2019, the matter was transferred to my docket. The applicant now relies upon a further amended application filed on 25 November 2019. That application contains three grounds, but only Grounds 1 and 3 were pressed. Those grounds are:
  2. I have before me as evidence the court book filed on 27 September 2017.
  3. Both the applicant and the Minister filed pre-hearing written submissions and made extensive oral submissions at the trial on 3 June 2020. In this case, the oral submissions of counsel proved to be particularly significant and, in relation to Ground 3, I granted leave for the Minister to file supplementary post-hearing submissions to address an issue advanced by counsel for the applicant for the first time orally, namely whether the Authority erred at [45] of its reasons[23] in failing to consider the threats to life which accompanied the extortion attempts claimed by the applicant. Those further submissions were filed on 17 June 2020.
  4. Also of particular significance in the oral submissions was the question of the silence of the Authority in its reasons as to the application of s.473DD(b)(ii) of the Migration Act both in circumstances of an obligation to give reasons (which was not asserted on behalf of the applicant) and otherwise.

Consideration

Ground 1 – did the Authority adopt an erroneous construction of s.473DD?

  1. The applicant contends in this ground that the Authority adopted an unduly narrow construction of s.473DD evident in its asserted failure to consider facts and material relevant to this case, which if they had been considered, may have led to admission of the new information. In particular, the applicant asserts that the Authority failed to consider whether the new information met the requirements of ss.473DD(b)(ii) and (iii). The applicant contends that the Authority failed to consider reasons and explanations advanced by the applicant for the purpose of satisfying his obligation in the chapeau of s.473DD(b) and in establishing exceptional circumstances for the purposes of s.473DD(a).
  2. I prefer the Minister’s submissions in relation to this ground.
  3. The applicant takes issue with the Authority's new information findings at [3]–[14].[24] The Authority had regard to the review material provided by the Secretary under s.473CB of the Migration Act.[25] On 28 November 2017, the applicant provided a submission to the Authority. To the extent that the submission addressed matters that were before the delegate, the Authority found that it was not new information and considered it.[26] The submission also sought to provide new information including submissions about Tamil diaspora activities, a medical report, letters of support and country information. The Authority set out the requirements of each limb of s.473DD of the Migration Act[27] and found the requirements of that provision were not satisfied in relation to any of the new information.[28] In particular, the Authority made the following findings:
    1. Tamil diaspora activities:[29] the Authority was not satisfied that the “new information could not have been, provided to the Minister before the decision was made”. The Authority also found that “[n]or am I satisfied there are exceptional circumstances” to justify considering this information;
    2. medical report:[30] while the medical report post-dated the delegate’s decision, the Authority did not accept the applicant’s explanation for not providing the information in the report earlier and found he could have done so. The Authority also did not accept the applicant was “only recently told about this incident”. The Authority stated it did not accept there were exceptional circumstances to justify considering the new information;
    1. letters of support:[31] while the letters of support post-dated the delegate’s decision, the Authority found “[t]here is no reason to believe that the applicant could not have sought the letters of support earlier”. The Authority also found as follows:[32]
      • I am not satisfied that there are exceptional circumstances that justify the IAA taking into consideration the new information and I have not had regard to it.
  4. The Authority addressed country information which was also new information.[33] In relation to some country information, the Authority made findings addressing each limb of s.473DD of the Migration Act.[34] The Authority found there were not exceptional circumstances for considering a Human Rights Watch report, dated 28 November 2006, on the basis that it accepted the relevant substance of that report contained in other country information that was before it.[35]
  5. I accept that the Authority made dispositive findings under s.473DD of the Migration Act with respect to the new information provided by the applicant. Section 473DD of the Migration Act provides:
  6. As the chapeau to s.473DD reveals, where new information has been proffered by a referred applicant (or somebody on his or her behalf), the Authority is prohibited from considering that information unless it is satisfied of the matters in subparagraphs (a) and (b)(i) or (ii).[36] Thus, if the Authority without error finds that it is not satisfied that there exist exceptional circumstances to justify considering new information (s.473DD(a)), the prohibition on considering that information will remain in place, even if the Authority does not consider, or make findings in respect of, the matters identified in s.473DD(b)(i) or (ii) (or does so but misconstrues or misapplies those subparagraphs in the process).
  7. Both the High Court in Plaintiff M174/2016 v Minister for Immigration[37] and the Federal Court in several judgments[38] have held that the requirements of s.473DD(a) and (b) are cumulative. That is to say that they are conjunctive: where new information has been proffered by, or on behalf of, a referred applicant,[39] he or she must satisfy the requirements of both s.473DD(a) and s.473DD(b).[40] The result is that if he or she cannot meet either requirement, the Authority must not consider the new information. Section 473DB(1)(a) supports this construction.
  8. Section 473DD(a) does not specify the matters that may be relevant to the Authority’s assessment of whether there exist, in a particular case, exceptional circumstances to justify considering new information. As the High Court observed in Plaintiff M174, “[q]uite what will amount to exceptional circumstances is inherently incapable of exhaustive statement”. An exceptional circumstance is one which, while it “need not be unique, or unprecedented, or very rare”, must not be “one that is regularly, or routinely, or normally encountered”.[41] The application of that criterion will, inevitably, involve an evaluative judgement by the Authority.[42]
  9. What s.473DD(a) does not require is for the Authority “to be satisfied of the existence of a particular fact or facts”.[43] It is not dipsuted that, in some cases, whether new information could not have been provided to the Minister at the time of the decision under s.65, or whether it is credible, personal information that was not previously known but, had it been known, may have affected the consideration of the referred applicant’s claims “may”[44] be relevant to the Authority’s assessment of exceptional circumstances. However, no decision of the Federal Court or the High Court suggests that they must be considered in forming the state of satisfaction identified in s.473DD(a).
  10. In circumstances where the Authority’s discretion to consider particular matters in deciding whether there exist exceptional circumstances is unconfined by the terms of s.473DD, it would not be appropriate to read paragraph (a) as requiring the Authority to take a particular matter into account unless an implication that it is bound to do so is to be found in the subject matter, scope and purpose of the Migration Act.[45] There is nothing in the text or context of s.473DD(a) that would suggest that the matters described in s.473DD(b)(i) and (ii) must be taken into account in determining the existence of exceptional circumstances. The Authority may, or may not, decide to have regard to them, but to treat them as mandatory relevant considerations would be to misread s.473DD(a). Indeed, it is noteworthy that, in Plaintiff M174, the Authority did not use the express language of s.473DD(b)(ii) or explain, even in substance, why the new information was not credible or was information that may not have affected the consideration of the plaintiff’s claims had it been known by the delegate. That notwithstanding, the plurality concluded, at [75], that the Authority’s lack of satisfaction of the criterion in s.473DD(a) “involved an evaluative judgment which was elaborately explained by the Authority and eminently justified by the reasons it gave”.
  11. I accept that it would be erroneous for the Court to find that the Authority’s consideration of whether there existed exceptional circumstances to justify considering the new information was required to be informed by the content of ss.473DD(b)(i) and (ii).[46]
  12. Moreover, the error that was made by the Authority in BVZ16 was that it focused solely on whether the referred applicant could have provided the new information in question to the Minister prior to a decision being made on his protection visa application. The Authority’s focus there was on the explanation given by the referred applicant as to why he did not provide the new information earlier.[47] That is how at least three Full Federal Courts have understood BVZ16.[48] In the present case, however, the Authority’s written statement reveals that it had regard to matters other than the respondent’s not having provided the new information earlier.
  13. Part 7AA of the Migration Act does not impose any duty on the Authority to give reasons as to why it is, or is not, satisfied of the matters identified in s.473DD.[49] In this connection, it should be noted that s.473EA(1)(b) of the Migration Act and s.25D of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act)[50] operate, respectively, to require the Authority to “se[t] out the reasons for the decision” and to “se[t] out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”. Each, however, imposes an obligation on the Authority with respect to its ultimate decision (that is, to affirm or remit the delegate’s decision under s.473CC(2)), not procedural or antecedent decisions made throughout the review (such as decisions as to whether or not to accept new information proffered to it).[51] That is because the words “the decision”, as they appear in s.473EA(1)(b), refer to “the decision of the Authority on the review” (cf. s.473EA(1)(a)) which, in turn, refer back to the words in the chapeau to subsection (1), “decision on a review under this Part”. That is how the analogous, and “materially identical”, obligation imposed by s.430(1)(b) of the Migration Act on the former Refugee Review Tribunal (Tribunal) has been construed by the High Court.[52] I accept that s.473EA(1)(b) should be construed in the same way.
  14. As to the obligation to state findings on material questions of fact and to refer to the evidence or other material on which those findings are based, the Minister submits that obligation should not be read any more broadly than the analogous obligations imposed on the Tribunal by ss.430(1)(c)–(d). Those provisions were held in Yusuf to relate to the findings and evidence or other material considered by the Tribunal to be material to its “conclusion” (that is to say its conclusion on the review).[53] Reading the obligation imposed by s.25D of the Acts Interpretation Act in the same way in the present context would be consistent with the Minister’s construction of s.473EA(1)(b). There is force in that submission, but it does not follow that the Authority is entitled to be entirely silent in its reasons as to its application of s.473DD.
  15. In my view, whether or not the Authority has an obligation to give reasons for anything other than its ultimate decision, it comes under an obligation arising from the Acts Interpretation Act to refer to the evidence bearing upon its decision. In order to do that, the Authority must identify what evidence is before it, particularly having regard to the severe limitation posed by s.473DD. That obligation, in my view, extends to identifying any new information and stating whether it has been accepted and considered or not, and why.
  16. The obligation is a limited one. Having regard to the limited nature of the obligation, the Court should be slow to infer from the Authority’s silence regarding the application of s.473DD(b)(ii) to certain new information that that subparagraph was not considered. Rather, in the circumstances of this matter, the inference is available that that subparagraph was considered but was not determinative. It was plain that the new information in issue was not previously known to the Minister. There is no suggestion that it was not credible personal information. The applicant’s difficulty, as found by the Authority, was that the new information could have been provided to the delegate and that there were no exceptional circumstances warranting its acceptance.
  17. The practical consequence for present purposes is that, absent a duty to give reasons for any decision made under s.473DD, the Court cannot infer that what is contained in the Authority’s written statement constitutes, or was intended to constitute, a comprehensive statement of the matters that it considered as to whether the requirements of s.473DD were satisfied.[54] As the High Court observed in Plaintiff M64/2015 v Minister for Immigration,[55] where an administrative decision‑maker is “not duty-bound to give reasons for his [or her] decision, ... it is difficult to draw an inference that the decision has been attended by error of law from what has not been said by [him or her]”.[56]
  18. Turning to the Authority’s reasons in the present case, I find that there was no misunderstanding by the Authority of the phrase “exceptional circumstances” in s.473DD(a). The Authority did not, for example, reason that, because the applicant did not provide the material to the delegate (or because the Authority was not satisfied of any reason given by the applicant as to why he did not provide the material earlier), it necessarily followed that exceptional circumstances did not exist. Here the Authority had regard to the fact that the substance of the new information could have been, but was not, given to the delegate (or, at the very least, that there was no evidence to suggest that it could not have been), the fact that the applicant was represented before the delegate and had been put on notice of the limited circumstances in which new material could be proffered to the Authority, and, importantly, the content of the new information. It found that “the information contained in each of these documents refers to events in the past” and that each appeared to have been sought by the applicant “in support of his claims”. It further described the information as “letters of support”.[57]
  19. The Authority’s conclusions in this regard, are without error. I reject Ground 1.

Ground 3 – did the Authority fail to consider whether the applicant and his family were subjected to extortion for a Convention reason and whether there was a real chance that the applicant would suffer persecution from extortion if he returned to Sri Lanka?

  1. This ground as put in the further amended application and addressed in the applicant’s written submissions must fail for the reasons advanced by the Minister.
  2. This ground challenges the Authority’s findings in relation to the applicant's claims about extortion and perceived wealth. The Minister submits that the Authority addressed these claims and made dispositive findings in respect of them. In particular, the Authority was not satisfied that the applicant’s family’s exposure to extortion amounted to serious harm or that there was a real chance of harm in the future.[58]
  3. In circumstances where the Authority found the applicant did not have a well-founded fear of serious harm in the reasonably foreseeable future, it was not required to make findings addressing each cumulative requirement set out in s.5J(4) of the Migration Act.[59]
  4. The Authority also made findings specifically addressing this claim in the context of complementary protection.[60]
  5. In oral submissions, however, counsel for the applicant advanced a fresh proposition that the Authority had erred in failing to consider whether the threats to life made in the context of extortion demands constituted serious harm.
  6. It was this issue that I provided the Minister with a post-hearing opportunity to address in further written submissions. I accept those submissions.
  7. First, at no stage in the visa application or merits review processes did the applicant advance, expressly or impliedly, a claim to fear serious harm in the form of a threat of the loss of life on his return to Sri Lanka on account of his or his family’s perceived wealth.[61] The applicant’s claims in respect of his or his family’s perceived wealth only involved assertions of past, physical harm.[62] Accordingly, the Authority was not under any duty to consider whether the applicant would be persecuted for the reason of a claim not made.[63] In so far as the applicant claimed, during the protection visa interview with the Minister’s delegate, to be “at risk of harm”,[64] he did not specify the type of harm that he feared if returned and the Authority was under no obligation to speculate, without further evidence from the applicant, as to the form that such harm might take.
  8. Secondly, the Authority went only so far as to accept that the applicant “may be perceived as being from a wealthy family and may be subject to demands for money on return to Sri Lanka”. That finding was made notwithstanding that “his family ha[d] not reported incidents to him” involving demands for money. Without more, it is difficult to see how a finding that the applicant may be subject to “demands for money” could give rise to an obligation to consider whether the applicant would be at risk of loss of life.
  9. Thirdly, and in any event, the Authority found that the applicant would not suffer “loss of life” on this basis.[65] That was the proper approach to the application of s.5J(5)(a) of the Migration Act for the purposes of s.5J(4)(b). Like the former s.91R(2)(a), s.5J(5)(a) “requires an evaluation of the likely circumstances of the loss of [life] feared by the claimant”[66]. The provision is concerned with loss of life or liberty.

Conclusion

  1. I conclude that the applicant has not established that the decision of the Authority is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
  2. I will hear the parties as to costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 30 June 2020

[1] Court Book (CB) 22
[2] CB 168
[3] CB 188
[4] CB 231
[5] CB 237–238: [21]–[24]
[6] CB 238: [25]
[7] CB 238–239: [26]
[8] CB 239: [27]
[9] CB 239–240: [30]
[10] CB 240: [32]
[11] CB 241–242: [39], [43]
[12] 241–242: [40], [43]
[13] CB 242: [42]–[43]
[14] CB 245: [57]–[58]
[15] CB 243: [45]
[16] CB 243: [47]
[17] CB 244–245: [54]–[56]
[18] CB 245: [59]
[19] CB 245: [60]
[20] CB 246–247: [65], [70]
[21] CB 246: [64]
[22] CB 246–247: [67]–[68]
[23] CB 243
[24] CB 232–234
[25] CB 232: [3]
[26] CB 232, 234: [4], [13]
[27] CB 232: [5]
[28] CB 232–234: [6]–[12]
[29] CB 232: [6]
[30] CB 232–233: [7]
[31] CB 233: [8]–[9]
[32] CB 233: [9]
[33] CB 233–234: [10]–[12]
[34] CB 233: [11]
[35] CB 234: [12]
[36] BRA16 v Minister for Immigration [2018] FCA 127 at [26] per Gilmour J
[37] [2018] HCA 16; (2018) 264 CLR 217 at [31] per Gageler, Keane and Nettle JJ, [78] per Gordon J, [100] per Edelman J
[38] see, for example, BVZ16 v Minister for Immigration [2017] FCA 958; (2017) 254 FCR 221 at [9] per White J; Minister for Immigration v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [102] per Kenny, Tracey and Griffiths JJ; CHF16 v Minister for Immigration [2017] FCAFC 192; (2017) 257 FCR 148 at [17]–[18] per Gilmour, Robertson and Kerr JJ; DYS16 v Minister for Immigration [2018] FCAFC 33; (2018) 260 FCR 260 at [31] per Tracey, Murphy and Kerr JJ; AUH17 v Minister for Immigration [2018] FCA 388 at [32] per Mortimer J
[39] it is unnecessary to consider the position where new information is proffered otherwise than by, or on behalf of, the referred applicant. In such a case, the Authority needs only to be satisfied of the requirement in s.473DD(a): Plaintiff M174 at [29] per Gageler, Keane and Nettle JJ
[40] Plaintiff M174 at [31] per Gageler, Keane and Nettle JJ
[41] Plaintiff M174 at [30] per Gageler, Keane and Nettle JJ
[42] Plaintiff M174 at [75] per Gageler, Keane and Nettle JJ
[43] DYS16 at [17]
[44] BVZ16 at [9], cited in BBS16 at [102], CHF16 at [17]–[18] and DYS16 at [31].
[45] Goundar v Minister for Immigration [2016] FCA 1203; (2016) 160 ALD 123 at [56] per Robertson J, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
[46] CAQ17 v Minister for Immigration [2019] FCAFC 203 per Mortimer J at [38], per Derrington and Steward JJ at [119]–[120]
[47] BVZ16 at [46]–[47]
[48] see, for example, BBS16 at [112], CHF16 at [44] and DYS16 at [34]
[49] in CHF16, the Full Federal Court referred to, but held that it was not necessary to determine, this issue (at [49])
[50] the Federal Court has held that s.25D of the Acts Interpretation Act applies to decisions of the Authority: see Minister for Immigration v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [74(b)] per Griffiths J
[51] BVD17 v Minister for Immigration [2019] HCA 34; (2019) 93 ALJR 1091 at [16] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; cf. Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 616–617 [69] per Gummow J (with whom Heydon J and Crennan J agreed at 623 [91] and [92], respectively)
[52] BVD17 at [16] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67] per McHugh J; Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 396 [235] per Callinan J
[53] Yusuf at 346 [69] per McHugh, Gummow and Hayne JJ, 390–392 [216]–[217] per Callinan J. See also SZGUR at 617 [69]
[54] cf. SZGUR at 605–606 [31]–[32] per French CJ and Kiefel J (as her Honour then was), 623 [91], [92]
[55] [2015] HCA 50; (2015) 258 CLR 173
[56] at 185 [25] per French CJ, Bell, Keane and Gordon JJ. See also at 199 [72] per Gageler J. See further Malek Fahd Islamic School Limited v Minister for Education and Training (No. 2) [2017] FCA 1377 at [42] per Griffiths J
[57] Minister for Immigration v AUS17 (2019) 167 ALD 313 at [26] per Logan J. On 24 April 2020, the applicant was granted special leave to appeal to the High Court from the decision in AUS17: AUS17 v Minister for Immigration [2020] HCATrans 55 per Kiefel CJ and Keane J
[58] CB 243: [45]
[59] SZTEQ v Minister for Immigration [2015] FCAFC 39; (2015) 229 FCR 497 at [58] per Robertson, Griffiths and Mortimer JJ
[60] CB 246: [64]
[61] CB 68-69:[35]-[38], CB 170 (fifth and following dot points), CB 175-176
[62] see, for example, CB 68-69:[22]-[26], CB 170 (penultimate and final dot points)
[63] NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 20 [61] per Black CJ, French and Selway JJ
[64] CB 175
[65] CB 243: [45]
[66] Minister for Immigration v WZAPN [2015] HCA 22; (2015) 254 CLR 610 at 630: [52] per French CJ, Kiefel, Bell and Keane JJ; (see also at 627-628: [45]-[46])

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