AEE17 v Minister for Immigration

[2018] FCCA 1156

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1156

Catchwords:
MIGRATION – Protection visa application – review of decision Immigration Assessment Authority – whether the Authority committed jurisdictional error with respect to a certificate issued under s.473GB of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Late application for amendment – whether it is in the interests of the administration of justice for leave to be granted – leave refused.

Legislation:

Migration Act 1958 (Cth), ss.473DA, 473DD, 473DE, 473GB, pt.7AA

Cases cited:

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176
MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081

SZMTA v Minister for Immigration & Border Protection [2017] FCA 1055

Applicant: AEE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 103 of 2017

Judgment of: Judge Smith

Hearing date: 9 April 2018

Date of Last Submission: 9 April 2018

Delivered at: Sydney

Delivered on: 9 April 2018

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Counsel for the First Respondent: Mr B Kaplan

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 103 of 2017

AEE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant seeks to amend his application to remove all of the grounds in the current form of the application and to insert instead the ground that:

   …

   The Independent Assessment Authority has breached sections 473DD, 473DE, 473GB of the Migration Act 1958 (Cth) and/or procedural fairness with respect to the a notice of disclosure, relevantl;y an “anonymous dob-in letter contained in the Court Book at page 166.

   Particulars

   a.The IAA has breached the above sections with respect to “a notice of disclosure of certain information covered by section 473GB of the Migration Act 1958 (Cth) as contained in the Court Book at page 166.

   b.The certificate was invalidly issued pursuant to section 473GB of the Act and, due to the misdirection, the procedural fairness requirements regarding section 473DE were not complied with and the exercise of jurisdiction embarked upon miscarried.

   c.In the circumstances, the Applicant was denied an opportunity to make representations regarding the invalidity of the notice.

   (Without alteration)

2. The substantive application before the Court is for the review of a decision of the Immigration Assessment Authority made on 16 December 2016.  The Authority made the decision to affirm the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. 

3. Essentially, the Authority was not satisfied that were the applicant to return to Sri Lanka in the reasonably foreseeable future that he faced a real chance of serious harm or significant harm within the meaning of the Migration Act 1958 (Cth) and so, for that reason, was not satisfied the criteria for the grant of a protection visa was satisfied. The application for review was filed in this Court on 12 January 2017.

4. On 23 May 2017 the Court made orders by consent including that the applicant file and serve any evidence relied upon including any transcript and any amended application by 3 August 2017.  No such amended application was filed by that time.  On 14 September 2017 in a callover before myself the applicant appeared in person and the Court made orders that the matter be set down for final hearing on 14 February 2018.  The hearing was later moved so that it came to be listed before me at 2:15pm on 9 April 2018. 

5. Up until 6 April 2018 that is, last Friday, the applicant was unrepresented.  On that day he managed to obtain the services of Mr Bodisco of Counsel who, during the morning of 9 April 2018, in correspondence with my Associate, of which he had put the first respondent on notice, indicated that he would be seeking leave to file an amended application and enclosed draft submissions with his email.  Those submissions addressed the ground that I have set out and in respect of which leave is sought to amend the application. 

6. The question of whether or not leave ought to be allowed to amend the application raises a number of issues but essentially the question is whether it is in the interests of the administration of justice, that is, to take into account not only the interests of the parties including any prejudice to the first respondent but to other parties that might be waiting for the matter to be heard in the Court that might otherwise be heard today or on a later occasion if leave were granted at a later period to be set. 

7. It also entails consideration of the delay in bringing the application to amend and any failure to comply with earlier opportunities by reason of orders made by the Court to amend and the reasons for those failures and delays.  In this case the applicant relies upon an affidavit made by him today in which he says that he is indigent.  The applicant also says that he has “had difficulties in obtaining funding and in obtaining the services of a barrister” and that he “was unable to find a barrister who was able to find arguable grounds for [his] matter”. 

8. On 5 April 2018 the applicant was assisted by a Mr Nathan Thiyagarash to get in contact with Mr Bodisco of Counsel and was informed on the following day that Mr Bodisco was able to identify the ground that is now before the Court in the application to amend.  I am not satisfied that that affidavit establishes any reasonable basis for the delay.  The applicant does not explain, at all, the steps that he has taken in the period in excess of 12 months that this application has been on foot to obtain further legal advice and to amend his application. 

9. Even if I were to take into account the following matters I would not be satisfied that the applicant’s delay is reasonable.  The first matter is that the orders for an amended application were not made until 23 May 2017 and the Court book which was filed by the first respondent in response to those orders was not filed until 20 June 2017; and, secondly, that a number of Full Court of the Federal Court decisions considering these matters, that is, the issues raised by the amended application, were not handed down until later in the year. 

10. I do not consider that even in light of those matters there is a reasonable excuse for the delay because the decision ultimately relied upon by the applicant was made in 2016 and is the decision of MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081, and as more recently considered by White J in SZMTA v Minister for Immigration & Border Protection [2017] FCA 1055. The issues raised were well known on the authorities at the time the applicant filed his application.

11. I said that the applicant had the opportunity to get further legal advice because it seems relatively clear to me from not only the background of the applicant as described in the material in the Court book, but also from the way in which the grounds of the current application are set out, that the applicant himself did not prepare those grounds but that he prepared it with the assistance of somebody who had at least some idea of the law concerning judicial review of decisions concerning protection visas.  The matter then of the significant delay and lateness in the application stands well against the applicant. 

12. I have said on several previous occasions that the fact that applications are made in migration proceedings for amendment does not elevate them beyond the usual principles to be applied by courts in determining what is in the interests of the administration of justice; such principles have been espoused by the High Court in cases such as AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. I turn then to consider the merits of the application.

13. I note that at this stage of the proceedings it is not a matter of determining on a final basis whether any fact relied upon or any issue of law will be finally disposed of contrary to or in favour of the applicant, but bearing in mind the other considerations, determining simply whether there is sufficient merit in the matter in all of the circumstances to warrant there being leave to amend. 

14. In my view there is not sufficient merit in this ground to warrant the grant of leave to amend and that is for a very simple reason.  The ground sought to be argued and the cases relied upon by the applicant, namely, as I have mentioned, MZAFZ and SZMTA, are inconsistent with the authority of the Full Court in Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 where the Court considered similar arguments at [85] through to [100] under the heading “Ground 2 of the notice of contention”[1]. 

    [1] Emphasis in original.

15. It is particularly important to note that the reasoning of Beach J in MZAFZ was found not to apply to proceedings for decisions made under pt.7AA of the Act. Critically, the difference is the existence of s.473DA and the fact that any certificate given under s.473GB, such as is purported to have been given here, is not, contrary to the argument of the applicant, new information for the purpose of pt.7AA. Given that the certificate and the underlying documents to which it refers is not new information, then references in the ground to ss.473DD and 473DE simply cannot succeed.

16. There is a further reason, however, that I find that there is insufficient merit in this case.  In BBS16, the decision of the Full Court was made on the concession by the Minister that the certificate issued in that case was not, in fact, properly given under s.473GB of the Act and that the Authority had had regard to the information referred to in it. In this case, although I need not determine this on a final basis, it is most likely that the documents referred to in the certificate were given to the Minister in confidence. That is not only because as is shown on the certificate at page 166 of the Court book, that is precisely what is said, but is also the most likely conclusion, given the description of the document as an anonymous dob-in letter.

17. The very fact of being anonymous supports, in my view, the suggestion that the document was given in confidence.  Therefore, even if I was satisfied that the requirement in sub-s.473GB(1)(a) of the Act was not met and, therefore, the certificate given was not valid to that extent, then I would be satisfied that the section still applied because of the operation of sub-s.473GB(1)(b).  In those circumstances, the very root of the argument falls away.

18. Secondly, although once again, I need not be concerned to make a final finding about this, it is not at all clear to me that the Authority had regard to the information.  First, there was no mention of it in its decision; and secondly, on the affidavit of Charlotte Elizabeth Saunders of 9 April 2018, it appears that the material referred to in the certificate was not even given to the Authority.  For all of those reasons, in light of the authority of the Full Court in BBS16 and the probability of the findings that I have mentioned in respect of the validity of the certificate and the reliance by the Authority on the certificate, I find that there is insufficient merit in the ground to warrant leave to amend, particularly given the significant delay for which I have found there is not a reasonable excuse.  For those reasons I dismiss the application for amendment.

19. In the substantive proceedings which I have described in my interlocutory judgment sufficiently for present purposes, the applicant does not press any grounds of review.  In light of that, I am not satisfied there is any jurisdictional error affecting the Authority’s decision.  The application will be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     10 May 2018