ACM17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1051
•8 September 2023
FEDERAL COURT OF AUSTRALIA
ACM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1051
Appeal from: ACM17 v Minister for Immigration [2020] FCCA 1056 File number: NSD 536 of 2020 Judgment of: GOODMAN J Date of judgment: 8 September 2023 Catchwords: MIGRATION – appellant applied for a protection visa – Minister’s delegate decided that the appellant did not satisfy the requirements of s 36 of the Migration Act 1958 (Cth) and that the appellant was an “excluded fast track review applicant” as defined in s 5 of the Act and thus unable to seek merits review by the Immigration Assessment Authority because he had previously made claims for protection in Germany and the United Kingdom that had been refused – appellant sought judicial review – primary judge dismissed the application on the basis that he considered himself bound by FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20; (2020) 275 FCR 152 which determined that the operation of paragraph (a)(iii) of the definition of “excluded fast track review applicant” in s 5(1) of the Act required only the making of an unsuccessful claim for protection in a country other than Australia, and did not depend upon the claim for protection in Australia being the same as, or substantially similar to, the previous claim for protection made in a country other than Australia – no error by the primary judge – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 5, 36, 473CA Cases cited: ACM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1056
FMM17 v Minister for Immigration [2019] FCCA 1500
FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20; (2020) 275 FCR 152
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of hearing: 28 August 2023 Counsel for the Appellant: Mr G Foster Solicitor for the Appellant: Sentil Solicitor Counsel for the Respondent: Ms K Hooper Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 536 of 2020 BETWEEN: ACM17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
GOODMAN J
DATE OF ORDER:
8 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The name of the respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GOODMAN J
A. INTRODUCTION
Section 473CA of the Migration Act 1958 (Cth) requires the respondent Minister to refer a “fast track reviewable decision” to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.
In the present case the Minister, via a delegate, formed the view that the decision that had been made to refuse the appellant’s claim for a protection visa was not to be referred to the Authority because that decision was not a “fast track reviewable decision” in circumstances where the appellant was not a “fast track review applicant” because he was an “excluded fast track review applicant”, within the definitions of those terms in s 5(1) of the Act.
The delegate found that the appellant was an “excluded fast track review applicant” because he had made “a claim for protection in a country other than Australia that was refused by that country”, within the meaning of paragraph (a)(iii) of the definition of “excluded fast track review applicant” in s 5(1) of the Act, as he had previously made unsuccessful claims for protection in Germany and the United Kingdom.
On an application for judicial review of the Minister’s decision before the primary judge, the appellant contended that the delegate had operated upon a mistaken interpretation of the expression “a claim for protection in a country other than Australia that was refused by that country” and that that expression was engaged only where the claim for protection in a country other than Australia and the claim for protection in Australia are the same, or substantially similar.
The primary judge held that the delegate’s interpretation of the definition was correct, that this interpretation was consistent with the construction adopted by the Full Court of this Court in FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20; (2020) 275 FCR 152 (Steward, Colvin and Abraham JJ), and that he was bound to follow FMM17. He dismissed the application: ACM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1056 (J).
For the reasons developed below, the primary judge was correct in doing so and the appeal should be dismissed.
B. THE MINISTER’S DECISION
The appellant is a citizen of Sri Lanka, who made unsuccessful claims for protection in Germany and the United Kingdom, before he arrived in Australia in August 2012 as “an unauthorised maritime arrival”. In September 2015, the appellant applied for a protection visa in Australia.
The appellant’s application for a protection visa was refused on the basis that the delegate was not satisfied that the appellant met the requirements of s 36(2) of the Act. The delegate notified the appellant of that decision and that there would be no merits review of that decision by the Authority under s 473CA of the Act because the delegate had also decided that the appellant was an “excluded fast track review applicant”. The delegate’s reasoning to the latter conclusion was expressed as follows (as written):
Reasons for the finding
In his statement of claims, the applicant claims to have travelled to Germany in August 1996 and to the United Kingdom (UK) in March 2000 and that he applied for protection in both countries. He claims he is not aware of the outcome of the visa application he lodged in Germany but that his application for refugee status in the UK was refused and he was subsequently deported to Sri Lanka in August 2006.
An Effective Protection check conducted by the Department with the German authorities advises that the applicant lodged an application for protection at Frankfurt Airport on 01/09/1996 (before authorized entry). The application was refused and the applicant was notified of imminent deportation on 13/02/1997.
An Effective Protection check conducted by the Department with the UK authorities advises that the applicant was refused asylum on 30/01/2001, his appeal was dismissed on 14/08/2003 and his appeal to the Tribunal was rejected on 30/10/2003. He was removed from the UK on 14/08/2006.
In making this assessment against the definition of an excluded fast track review applicant in subsection 5(1) of the Migration Act 1958 (the Act, I consider that s.57 of the Act does apply.
Accordingly on 16 August 2016, a letter was sent to the applicant advising him that as he is a ‘fast track applicant’, if his SHEV application is refused based on his claims, on the evidence before the department, he may be considered to be an ‘excluded fast track review applicant’. The applicant was advised that if he is assessed as being an ‘excluded fast track review applicant’, his application cannot be reviewed by the Immigration Assessment Authority (IAA). He was invited to provide comment in relation to this possible consideration.
In a submission dated 24 August 2016, the applicant’s migration agent submitted that:
•The applicant’s current claim for protection is not one which was made previously and so is not one which was made in a country other than Australia that was refused by that country.
•The applicant’s claims for protection in Germany and the UK relate to events that occurred before his departure in August 1996, some 20 years ago. His current claim relates to incidents that occurred after his return to Sri Lanka in August 2006, 10 years ago. These incidents considerably post-date the applicant’s previous claims and give rise to a fear of persecution for reasons that are different from those relating to the previous claim.
•The applicant’s current claim has not been previously assessed by any other country. It is submitted that it was not Parliament’s intention to exclude an applicant in these circumstances.
The migration agent made reference to the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. He submitted that the applicant’s current claim for protection is neither non-genuine nor unmeritorious and he has provided evidence to support his claim. The agent further submitted that it would be irrational to find that the applicant is ‘forum-shopping’ simply on the basis that he sought asylum in another country over 10 years ago based on incidents that occurred to him over 20 years ago.
It was further submitted that in any case the applicant did not have his previous claims assessed adequately as it is understood that his claim in Germany was not assessed at all, and that in relation to his claim made in the UK the applicant relied on poor legal advice, as a result of which significant claims were omitted. The migration agent submitted that the applicant would be denied procedural fairness were he denied the right of review if his application is refused.
I have considered the applicant’s migration agent’s comments, however, on the evidence before me, the applicant has previously made claims for protection in a country other than Australia which were refused by that country.
Section 5(1)(a)(iii) of the Act defines an excluded fast track review applicant as a fast track applicant who has made a claim for protection in a country other than Australia that was refused by that country. The Procedures Advice Manual advises that the department’s policy position is that applicants will satisfy this aspect of the excluded fast track review applicant definition only if they have had their protection claims assessed and refused in a third country that is a party to the 1951 Convention relating to the Status of Refugees (Refugee Convention) and/or its 1967 Protocol and that the person will satisfy the definition regardless of the time that may have passed or the difference in claims considered by the third country.
Both the UK and Germany are parties to the 1951 Convention relating to the Status of Refugees (Refugee Convention) and/or its 1967 Protocol. Furthermore, I note that the applicant has in his SHEV application made reference to the incidents that allegedly occurred to him prior to his departure from Sri Lanka in 1996 and he claims he currently fears harm at the hands of the Sri Lankan Army (SLA) on return to Sri Lanka, and this is partly due to his imputed LTTE association relating to incidents that occurred prior to 1996.
Consequently, in light of the evidence before me, I find that the applicant satisfies the definition of an excluded fast track review applicant under paragraph 5(1)(a)(iii) of the Act.
(emphasis added)
C. THE APPLICATION TO THE PRIMARY JUDGE
Before the primary judge, the appellant ultimately advanced three grounds of review, numbered 4, 5 and 6. Only one of those grounds (ground 6) is pursued on this appeal. Ground 6 was in the following terms:
6. The Delegate erred when she was satisfied the Applicant met the definition of an excluded fast track review applicant in S 5 (1) of the Act.
Particulars
i.[CB143]
ii.The claims made by the Applicant in Germany in 1996 and in the UK in 2000 (Germany [CB72] and the UK [CB73]) were totally different to the claim made by the Applicant to the Australian authorities in 2015 [CB25];
iii.The definition of a “a fast track applicant” relevantly includes an applicant “(a) who in the opinion of the Minister .... iii has made a claim for protection in a country other than Australia that was refused by that country ... “see S 5 of the Act;
iv.The purpose or object, spirit and intention of the definition is meant to apply to claims which are the same or substantially the same;
v.The purpose or object, spirit and intention of the definition is not meant to apply to claims which are not the same or substantially the same;
vi.The spirit and intention of the legislation is not meant to apply to persons such as the Applicant where the claim for protection in a country other than Australia that was refused, is totally different made in Australia.
At J[92], in the course of considering ground 5 before him, the primary judge stated:
In FMM17 at [22]–[23] the Full Federal Court set out the relevant principles in construing, in context, the meaning of the definition of excluded fast track review applicant as contained in s.5(1) of the Act. That judgment is binding on this Court.
The primary judge identified the appellant’s argument concerning ground 6 as follows:
98.Ground six asserts that the delegate fell into legal error in finding that the applicant met the definition of an excluded fast track review applicant because the “object, spirit and intention of the definition” is meant to apply to claims which are the same, or substantially so.
99.The argument was that in the current case, the claims to protection in Germany and the United Kingdom, relating to an earlier period in the applicant’s life were “totally different” to the claims made in Australia.
100.The applicant’s submission was that the definition of “excluded fast track review applicant” was unclear as to whether the claim made in another country must be the same, or substantially the same, as that made in Australia.
101.In the current case, the applicant sought to argue that the circumstances in this case were distinguishable from those in FMM17 because in that case while the applicant made a “previous claim” in France (before making a claim in Australia) there was no suggestion that the claim was different to that in Australia.
The primary judge identified at J[102] to [104] various paragraphs of the first instance decision in FMM17 v Minister for Immigration [2019] FCCA 1500 (Judge Lucev) relied upon by the appellant and the Minister as relevant to whether the claims made by FMM17 in France and Australia were similar.
The primary judge noted at J[105] that in FMM17 at 154 [8] under the heading “Issues on the appeal” the Full Court stated:
8. The appellant claims that the primary judge erred in not accepting his contention as to the proper construction of the relevant words in the statutory definition of ‘excluded fast track review applicant’. He submits that on the proper construction of the Act, the words ‘a claim for protection’ used in the relevant category of exclusion mean a claim for protection that was based upon alleged facts that are materially the same as those relied upon as the basis for the claim subsequently made in Australia. The submission advanced for the appellant focusses upon the word ‘claim’ and seeks to read that word as meaning a claim of a particular kind, namely a claim based on materially the same facts as the subsequent claim. The appellant says his claim for protection was based upon new matters that occurred after he returned to Sri Lanka from France and therefore he is not an excluded applicant. The Minister maintains that the delegate applied the correct view of the Act.
(emphasis added)
The primary judge then continued:
106.In the current case, the applicant submits that his claims are based on different periods of the applicant’s life, and are not similar. For this reason, the applicant argues that he should therefore not be considered an excluded fast track review applicant.
107.In short, the appellant in FMM17 also argued to be an excluded fast track review applicant, claims in both countries must be similar. This argument was found not to assist the appellant (see FMM17 at [25], [27], [30]–[31]).
108.In the current case, the applicant sought to draw on s.15AB of the Act Interpretations Act 1901 (Cth), and the use of extrinsic material, to argue that the Explanatory Memorandum which related to the legislative amendment which introduced s.5(1)(a)(iii) of the Act provided support for the proposition that claims made by an applicant in another country which were different to claims made in Australia would put such an applicant outside the definition of an excluded fast track review applicant. Further, the Minister’s relevant Procedures Advice Manual (“PAM”) supported the proposition contended for now by the applicant.
109.It is not necessary for current purposes to review the applicant’s argument in great detail and to have regard to the Explanatory Memorandum, or the PAM. That is because, as was, with respect, made clear in FMM17, this argument including the reference to extrinsic material was put to, and rejected by, the Full Federal Court in FMM17 (see at [24]–[F] (sic), and see [105] and [107] of this judgment). Ground six is not made out.
(emphasis added)
D. THE APPEAL TO THIS COURT
The appellant’s Amended Notice of Appeal repeats ground 6 as advanced before the primary judge.
Section 5(1) of the Act defined excluded fast track review applicant, in so far as is presently relevant, as follows:
excluded fast track review applicant means a fast track applicant:
(a) who, in the opinion of the Minister:
...
(iii)has made a claim for protection in a country other than Australia that was refused by that country…
The essence of the appellant’s argument is that: (1) as a matter of statutory construction the “claim for protection made in a country other than Australia that was refused by that country” must be a claim for protection in the same, or substantially similar, terms to the claim for protection under consideration in Australia; and (2) as a matter of fact, in the present case the evidence does not establish that the protection claims made by the appellant in Germany and the United Kingdom were in the same or substantially similar terms to his claim for protection in Australia.
The issue of statutory construction was considered by the Full Court in FMM17. In that case, FMM17 was refused a protection visa on the basis that he had made a previous claim for protection in France that had been refused. The Minister’s delegate applied paragraph (a)(iii) of the definition of “excluded fast track review applicant” in s 5(1) of the Act on the basis that it was sufficient that there had been a previous unsuccessful claim for protection, regardless of the degree of congruence, if any, between the previous claim for protection and the claim for protection under consideration. An application for judicial review of the delegate’s decision was dismissed by the (then) Federal Circuit Court of Australia.
The Full Court on appeal considered whether, as a matter of statutory construction: (1) it was sufficient that a previous claim for protection had been made in another country and had been refused (as the Minister contended – see 154 ([4] and [8], final sentence); and 157 [21]); or (2) this was insufficient and it was also necessary that the claim for protection made in a country other than Australia have been based upon alleged facts that are materially the same as those relied upon as the basis of the claim for protection made in Australia (as FMM17 contended – see 154 [8]).
The Full Court held the former construction was correct (at 157 [10] to 160 [34]). In doing so, the Full Court considered and rejected various arguments as to statutory construction which the appellant repeats on this appeal.
The appellant in the present case does not contend that FMM17 was incorrectly decided. Instead, he seeks to distinguish it. The appellant submits that: (1) FMM17 involved a different factual scenario than the present case in that FMM17’s previous claim for protection made in France and FMM17’s application for protection in Australia were the same; and (2) thus the reasoning of the Full Court on the question of statutory construction did not form part of the ratio decidendi of that decision. That submission must be rejected, for the following reasons.
First, the ratio decidendi of FMM17 is that the fact that a claim for protection was made in another country and refused is sufficient to engage the expression “... claim for protection made in a country other than Australia that was refused by that country” used in paragraph (a)(iii) of the definition of “excluded fast track review applicant” in s 5(1) of the Act. A corollary is that it is not necessary for the claim for protection made in a country other than Australia to have been based upon alleged facts that are materially the same as those relied upon as the basis of the claim for protection made in Australia.
Secondly, that ratio decidendi, which involved a question of statutory construction, is not fact dependent.
Thirdly, in any event, the reasons of the Full Court operate upon the basis that FMM17’s claims for protection in France and in Australia were different. So much is clear from FMM17 at 154 [8]: “The appellant says his claim for protection was based upon new matters that occurred after he returned to Sri Lanka from France and therefore he is not an excluded applicant”.
Thus, there is no basis upon which to distinguish FMM17. The primary judge was correct to follow that decision.
E. CONCLUSION
The appeal should be dismissed with costs. I will make orders accordingly.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate:
Dated: 8 September 2023
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