AFK16 v Minister for Immigration & Anor - [2016] FCCA 1826

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFK16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1826

Catchwords:
MIGRATION – Immigration Assessment Authority review – exclusion of common law procedural fairness.

Legislation:

Migration Act 1958, ss.357A, 422B, 473DA, 473DB, 473DC

Applicant:

AFK16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 220 of 2016

Judgment of:

Judge Cameron

Hearing date:

13 July 2016

Date of Last Submission:

13 July 2016

Delivered at:

Sydney

Delivered on:

13 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr P. Bodisco

Counsel for the First Respondent:

Mr B. D. Kaplan

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The applicant’s application to amend the application made today be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 220 of 2016

AFK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant in this case is what the Migration Act 1958 (“the Act”) describes as an unauthorised maritime arrival. He arrived at Christmas Island by boat in 2012 and was later permitted to make an application for a visa which was ultimately unsuccessful.
The administrative regime for the grant of a visa which applies to a person such as the applicant now involves a determination by a departmental officer with delegated authority, possibly followed by a review by a body called the Immigration Assessment Authority (“IAA”). The IAA is to review the departmental decision should it be unfavourable to an applicant.
Because the applicant was unsuccessful before the IAA, on 27 January 2016 he filed an application in this Court seeking review of the IAA’s decision. That application was drawn by the applicant’s original counsel. On 12 April 2016 directions were made granting leave to the applicant to file and serve an amended application on or before 6 May 2016. An amended application, also drawn by the applicant’s original counsel, was filed on 9 May 2016. It also should be noted that on 12 April 2016 a further order was made, namely order 16:
Any application to further amend the application may only be made by application in a case supported by affidavit.
On 1 July 2016 an application in a case seeking leave to rely on a further amended application, also drawn by the applicant’s original counsel, was filed. A copy of that document was annexed to the applicant’s affidavit which was filed on 1 July 2016. At a further directions hearing on 8 July 2016 Mr Bodisco of Counsel appeared for the applicant and it seemed to be agreed that the pleading on which the applicant would rely was the proposed further amended application.
Today, leave was sought to file a new document entitled “Amended Application”. No application in a case was filed and the earlier application in the case was not withdrawn or dismissed. Indeed, nothing was said of it. The new document appears to be a refinement of the earlier proposed further amended application. Counsel explained, and I accept, that the significant ideas now embodied in the proposed document did not occur to him until today. The delay in producing the proposed amendment has been explained satisfactorily but that does not dispose of the application to amend.
In large part, the proposed amendments were opposed by the Minister. There is no point in granting an amendment if it is not arguable or perhaps even if it does not have reasonable prospects of success. I am not of the view that such of the proposed amendments as are opposed are arguable.
The proposed amended application states:
1.The IAA failed to review the decision pursuant to section 473CC of the Migration Act 1958 (Cth) by failing to comply with section 4763CB [sic] of the Migration Act 1958 (Cth), which requires the Secretary to give to the Immigration Assessment Authority the “review material” and/or by denying the Applicant procedural fairness in circumstances where the Applicant was unable to make submissions regarding the accuracy of the transcript of the first half of the Illegal Maritime Entry Interview.
Particulars
a)At page 340 of the Court Book, on 30 November the Immigration Assessment Authority (IAA) sent a post referral request for “existing” documents to the Department of Immigration and Border Protection (DIBP) which were missing or incomplete.
b)The IAA requested the audio of the first half of the Illegal Maritime Arrival Entry interview of 15 November 2012. The PDF portfolio provided two audio files in this regard but both were copies of the second half of the interview.
c)At page 341 of the Court Book, on 30 November 2015, the DIBP responded to the request by the IAA by way of a letter which stated that “extensive searches were undertaken to locate the first session of the audio interview but unfortunately it is not in the Department’s possession. However, a “transcript of the arrival interview was available and was provided” and included in the portfolio sent on 23 November 2015.
d)Section 473CB(1) of the Migration Act 1958 (Cth) provides that the Secretary must give to the Immigration Assessment Authority the “review material”.
e)However, the Secretary failed to give the IAA the material provided by the applicant in the form of the audio of the applicant’s arrival interview, pursuant to section 473CB(1)(b) or (c) of the Migration Act 1958 (Cth).
f) In the circumstances, the Applicant has been denied an opportunity of making representations regarding the accuracy of the transcript and its relevance to the findings made by the IAA, particularly at [15] and [16] of the decision.
(Original underlining now in bold)
The new (bolded) passage in the allegation and particular (f) are the ones which the Minister opposed.
The argument advanced in favour of the amendments was discursive and tended to distract from and to obscure the matters requiring consideration rather than to illuminate or explain them.
The essence of the proposed amendments, as explained by Counsel for the applicant, was that the applicant had a common law right to test the accuracy of the written record of his first interview on Australian soil, the “Irregular Maritime Arrival Entry Interview” of 15 November 2012, by reference to the sound recording of that interview. With his argument framed in that way, the applicant had to demonstrate that it was at least arguable that common law procedural fairness rights applied to his IAA review. As the applicant did not contend that the IAA’s decision was tainted by bias, I took his reference to common law procedural fairness to be a reference to the natural justice hearing rule.
To make out his argument, the applicant had to address in a substantive way the impediment apparently presented by s.473DA of the Act, which relevantly provides:
473DA Exhaustive statement of natural justice hearing rule
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
It must be said that the applicant’s arguments did not focus on that provision although reference was made to it. Much was made of other issues which were not, at the end of the day, relevant.
It should be observed that s.473DA(1) is similar to, but in a very material respect different from, subsections (1) of ss.357A and 422B of the Act, which relevantly state:
357A Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
422B Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
The difference in wording cannot have been unintended. In that connection, it is to be noted that, generally, IAA reviews afford fewer rights to applicants than the reviews before the Administrative Appeals Tribunal which are available to applicants who are not irregular maritime arrivals. Sections 473DB(1) and 473DC(2) are examples of the new restrictiveness which is to be found in IAA reviews. It seems to me that s.473DA is intended to and does exclude the common law natural justice hearing rule from IAA reviews. I therefore find that the existence of the common law right which the applicant would wish to propound is not arguable. At the very least, the applicant did not demonstrate in his presentation to the Court today that it was.
Consequently, today’s application to amend will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 20 July 2016