AGK17 v Minister for Immigration
[2019] FCCA 1156
•3 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGK17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1156 |
| Catchwords: MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – further amended application relied on at hearing – whether the IAA misconstrued or misapplied s.473DD of the Migration Act 2009 (Cth) by refusing to consider new information on the basis that there were not exceptional circumstances for doing so – applicant alleged that the IAA fell into jurisdictional error because it misled the applicant in relation to the scope of the submissions that the applicant was “allowed” to put to the IAA – neither ground of the further amended application made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 473DA, 473DB, 473DD, 476 |
| Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 214 CLR 496; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 |
| Applicant: | AGK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 153 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 12 March 2019 |
| Date of Last Submission: | 12 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Mostafa |
| Solicitors for the Applicant: | Varess |
| Legal Representative for the Applicant: | Mr F. Varess |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
| Legal Representative for the Respondents: | Ms K. Evans |
ORDERS
The name of the first respondent be amended to read Minister for Immigration, Citizenship and Multicultural Affairs.
The application made on 17 January 2017, and as further amended, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 153 of 2017
| AGK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 January 2017, and further amended on 12 March 2019 seeking review of the decision of the Immigration Assessment Authority (“IAA”) made on 13 December 2016 which affirmed the decision not to grant the applicant a protection visa (“the visa”).
The evidence before the Court is the affidavit of Farid Varess, solicitor, made on 26 February 2019, and a bundle of relevant documents filed by the Minister, and tendered by the applicant. (The Court Book – “CB” – “AE 1”).
Background
The applicant is a citizen of Pakistan. He arrived in Australia on 25 October 2012 (CB 184). On 20 July 2015 he made an application for the visa (CB 78 – CB 112). He attended an interview with the delegate on 30 September 2015. The delegate refused the grant of the visa on 29 September 2016 (CB 180 – CB 213). The applicant was referred to the IAA.
The applicant claimed to fear harm on a number of bases. For current purposes, I note the Minister’s summary of the claims, as set out in his written submissions. I did not understand the applicant to dispute what is set out there:
“1.2 The applicant’s claims are contained in his visa application and statement in support,1 and can be summarised as follows:
(a) He was a Shia Pashtun from the Turi tribe in Kurram Agency, Pakistan. He resided in Parachinar.2
(b) His cousin was an elder who spoke out against the Taliban and was killed by them. His father received threats from the Taliban. On one occasion, the Taliban attacked his father’s business vehicles and destroyed them.
(c) Subsequently, when the applicant was playing cricket with friends, the Taliban opened fire on them, but he escaped unharmed. His father believed it may have been the Babu group which was part of the Taliban.3 He was forced to stay at home because of bombings, killings, and kidnappings in his home area.
(d) He and his girlfriend were caught having pre-marital sex. The girl’s family became aware and were searching for him. In Pashtun culture, pre-marital sex was punished by death. There was a tribal decision that he and his girlfriend would be killed.4
(e) His father received a threat from the Babu Group. His father was concerned the applicant would be kidnapped by the Babu Group and arranged for his departure from Pakistan.5 Many people were being kidnapped for ransom or religious reasons when travelling from Parachinar to Peshawar.
(f) The Taliban or the Babu group would kill him because he was a Shia Muslim.
(g) His girlfriend’s family was still searching for him and would kill him and the girl if he returned to Pakistan. The girl’s uncle went to his family’s home in August 2016 and threatened that they would find and kill him.6
(h) The Pakistani Consulate advised him that they would not help him because he had claimed asylum in Australia.7”
[Footnotes omitted.]
The IAA’s Decision
The following from the IAA’s decision record provides background to the grounds of the further amended application.
The IAA had received submissions by way of email, from the applicant’s migration agent (CB 234 – CB 240). Three documents were attached to the submissions. These were described in the submissions as at [17] (at CB 240):
“17. The applicant is providing following documents for consideration:
I. A letter from Pakistan international Minority Human rights organisation in favour of his claim.
II. Compromised reached between the parties through members of the Jirga.
III. Applicant Statutory Declaration.
In regards to the above documents we submit that the information contain in the documents does not have new information which attract section 473DD of the Migration Act. It actually corroborating the claim made by the applicant. Information is in support of his claim on fear for serious harm from Tribal authorities. Letter from Human Rights organisation states current situation in the area from where applicant comes apart from situation for Shia in other parts of the country.”
[Errors in the Original.]
The IAA did not consider the submissions themselves to be “new information” for the purposes of Part 7 AA of the Act. It therefore had regard to the submissions in relation to arguments addressing the delegate’s decision ([5] at CB 251).
Further, the submissions also asserted that the applicant be given: “…an opportunity to clarify and provide further and additional information with relation to the above findings by the Decision Maker” (the delegate) ([10] at CB 238).
This appeared to be focused on one part of the delegate’s decision record. At the interview with the applicant, the delegate put to him that his claim to have had a relationship with a girlfriend with whom he claimed to have had a sexual relationship, was a fabrication. The IAA found that the applicant was afforded a fair opportunity at the interview to address the delegate’s concerns.
The IAA was not satisfied that there were exceptional circumstances such as to justify consideration of the letter from the Pakistan human rights organisation, or the uncertified copy of the tribal council decision (“the Jirga decision”).
The IAA did, however, have regard to the applicant’s statutory declaration, in which he claimed his girlfriend’s cousin had seen them engaged in sex and that her uncle subsequently went to the applicant’s family home, and made threats to find and kill the applicant. The IAA found that there were exceptional circumstances to justify considering this document.
The IAA had serious reservations about the claims concerning his girlfriend. (The premarital sexual relationship).
For the remainder, the IAA accepted that the applicant was a Pashtun Shia from the Turi tribe, and that his family had experienced various adverse events. However, it found that neither he, or his father, would be of adverse interest to those from whom he claimed to fear harm in the future. Further, that he would not face harm as a result of the security situation in his home area.
The IAA also considered his claims to fear harm because of his interest in Christianity and Buddhism, and that he would be of adverse interest to the Pakistani authorities because he was a failed asylum seeker returning from the West.
The Grounds of the Further Amended Application
The grounds of the further amended application are as follows:
“1. The Authority misconstrued or misapplied s 473DD of the Act when it refused to consider new information provided by the applicant on the basis that there were not exceptional circumstances for doing so.
Particulars
a.The applicant claimed to have had a romantic and sexual relationship with a woman in Pakistan, and to fear harm as a result thereof (Relationship Claim): CB 252-3 [12].
b.The applicant provided the Authority with a decision by a Jirga and a translation thereof (Jirga Decision): CB 244, 252 [9].
c.The Jirga Decision supported the Relationship Claim: CB 244.
d.The Authority found that there were not exceptional circumstances to consider the Jirga Decision: CB 252 [9].
e.The Authority rejected the Relationship Claim on the basis that the applicant had not had, and was not perceived to have had, a romantic or sexual relationship with the woman in question: CB 259-60 [33].
f.In finding that that there were not exceptional circumstances to consider the Jirga Decision, the Authority erred in one or more of the following ways:
i.in considering whether there were exceptional circumstances, considering only whether the applicant knew that the veracity of the Relationship Claim was in issue and had previously had the opportunity to bring the Jirga Decision forward;
ii.failing to consider either or both of:
A.the potential relevance of the Jirga Decision to the determination of the applicant’s case, and whether this impacted upon whether there were exceptional circumstances for considering the Jirga Decision;
B.whether the Jirga Decision was such as to satisfy s 473DD(b)(ii), and, if so, whether this bore upon whether there were exceptional circumstances for considering the Jirga Decision.
2.The Authority fell into jurisdictional error by misleading the applicant regarding the permissible scope of the submissions that the applicant was allowed to put to the Authority.
Particulars
a.The Authority’s Practice Direction 1 (May 2016) entitled Practice Direction for Applicants, Representatives and Authorised Recipients (Practice Direction), stated that, for the purposes of the Authority’s review the applicant could provide a written submission on why the applicant disagreed with the Delegate’s Decision or any claim or matter presented to the Delegate that the Delegate had overlooked.
b.The Delegate found that “the applicant faces a real chance of persecution for one or more of the reasons of his Shia religion and/or his Turi race and/or an imputed political opinion against the Taliban as described in s 5J(1)(a) of the Act in the receiving country”: Delegate’s Decision at [132]. However, the Delegate found against the applicant on the basis that he “was not satisfied that the real chance of persecution relates to all areas of the receiving country” as required under s 5J(1)(c) of the Act: Delegate’s Decision at [143].
c.The applicant provided a written submission on 26 October 2016 directed towards disputing (inter alia) “the finding by the Decision Maker [ie Delegate] that the Applicant’s real chance of persecution does not relate to all areas of the receiving country”: submission at [13] to [16].
d.The Authority, however, decided that the applicant was not entitled to a protection visa because the Authority was “not satisfied that there is a real chance that the applicant would suffer serious harm in Parachinar on the basis of his Shia faith and membership of the Turi tribe, or as a result of the security situation in Parachinar”: Authority’s Decision at [51].
e.In sending the Practice Direction to the applicant, the Authority misled the applicant. At law, the applicant was not restricted to making submissions only on the matters referred to in particular a above.
f.In light of the way in which the Authority disposed of the review (as outlined above), the misleading of the applicant by the Authority was material, and as such the Authority left its jurisdiction constructively unexercised or denied the applicant procedural fairness.”
[Errors in the Original.]
Consideration
Ground one asserts that the IAA either misconstrued or misapplied s.473DD(a) of the Act when it refused to consider “new information” provided by the applicant to it.
Section 473DD is in the following terms:
“Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”
The applicant’s argument is as follows. He claimed to have had a romantic and sexual relationship with his girlfriend in Pakistan. He was “caught” having sex by his girlfriend’s cousin, who informed her family. The applicant was then at risk of harm. A local council of tribal elders (“the Jirga”) made a decision that he and his girlfriend be killed by representatives of the respective families. (The “parties” before the Jirga).
The applicant provided a copy of the Jirga decision to the IAA, as attached to his migration agent’s submissions. This was to corroborate his claim about the harm feared because of his sexual relationship with his girlfriend.
The applicant’s ground at [28] of his written submissions of 26 February 2019 focuses on [9] (at CB 252) of the IAA’s decision:
“9. The second document is an uncertified copy of a purported decision made by a Jirga, a tribal council, relating to the applicant’s claimed relationship with a woman, dated 15 October 2010, accompanied by an uncertified copy of a translation into English. The applicant’s representative submits that the IAA should consider this new information because the applicant was not made aware during the TPV interview that the lack of additional evidence from him to support his claim of pre-marital sex with a woman in Pakistan, including further evidence of a Jirga decision, could lead the delegate to make an adverse finding in relation to his claims regarding a relationship with a woman. As discussed, I am satisfied that the applicant was aware that the veracity of this aspect of his claims was in question and that he had the opportunity to provide additional evidence following the TPV interview. I am not satisfied that there are exceptional circumstances to justify the consideration of this information.”
[Emphasis added by applicant].
There appear to be two elements to the applicant’s argument. One, in considering the question of whether exceptional circumstances existed for the purposes of s.473DD the IAA took a “narrow” approach and focused only on why the Jirga decision had not been put forward at an earlier time.
Two, the assertion of legal error is that in considering s.473DD(a) the IAA only considered s.473DD(b)(i) and not s.473DD(b)(ii).
That is, in considering whether there were exceptional circumstances to justify considering the new information (the Jirga decision), the IAA did not consider whether the Jirga information was credible personal information which was not previously known, and if known may have affected the consideration of his claims.
Before the Court, the applicant sought to explain one seeming difficulty for him arising from the migration agent’s submissions to the IAA.
The migration agent submissions stated at [10] – [12] (CB 238):
“10. It is asserted on behalf of the Applicant, that the Applicant should be provided an opportunity to clarify and provide further and additional information with relation to the above findings by the Decision Maker.
11. It is submitted that the Decision Maker has made an error in making the above findings as the Decision Maker did not have sufficient evidence to support such finding.
12. In addition, it is submitted that the Applicant should be afforded procedural fairness to provide additional supportive evidence with relation to the above findings as it is not evident from the departmental interview that the Applicant was advised that lack of additional evidence from him to support his claim of pre-marital sex with Noreen in Pakistan and further evidence of Jirga decision being made on this very issue would render such finding by the Department.”
[Error in the Original.]
The applicant submitted before the Court that that could be considered as an acknowledgement by the applicant (through his migration agent) that the Jirga decision document is “new information”, and that these paragraphs are the applicant’s arguments as to why it was not submitted earlier, and why the IAA should nonetheless consider it.
However, the applicant argues that when regard is had to [17] of the same document, that is, when the submissions were read holistically, the migration agent sought to submit to the IAA that the Jirga decision was not new information, but simply sought to corroborate the applicant’s claims. (See [17] of the migration agent’s submissions set out at [6] above).
The applicant submitted now that the applicant’s migration agent did not understand how “that part of the Migration Act worked”.
I have addressed this matter further below, but for the moment the following may be said. The applicant claimed before the delegate that he had been: “…caught having sex with his girlfriend…at school…” by her cousin. He feared harm because the cousin told her family. The delegate had various concerns about the applicant’s claim and his statements to the delegate ([76] – [83] at CB 194 – CB 196).
Ultimately the delegate found: “On the basis of the above, I accept the applicant was in a relationship with [the girlfriend] but I do not accept the claim of premarital relations” ([80] at CB 195.5).
The applicant was notified of the delegate’s decision by letter dated 29 September 2016 (CB 181). The date of the Jirga decision is said, on its face, to be 15 October 2010 (CB 244).
The applicant now sought to criticise his migration agent’s apparent lack of understanding of this part of the Act which is currently under consideration. That criticism may be well-founded.
What emerges from the migration agent’s submission, even when read holistically, and fairly, is that ultimately it is contradictory, and misunderstands the relevant terms of the legislation.
In some contexts, the distinction between claims and evidence and submissions does not ultimately matter. For example, where a claim to fear harm may emerge in evidence given by an applicant, or from written submissions, or: “…a substantial, clearly articulated argument relying upon established facts…” (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]). (See also Minister for Immigration and Citizenship v SZRKT [2013] FCA 317).
But in this case, the distinction between “claims” and “evidence” provides context in understanding not only the migration agent’s submissions, but the applicant’s submissions before the Court.
Section 473DD is focused on a species of “information”, that is, “new information”. The applicant’s statements to the delegate concerning his girlfriend may be understood as part of his claims to fear harm if he were to return to Pakistan. Section 473DD does not speak of “claims”, but, as set out plainly, “new information”.
In this light what is set out at [10] – [12] of the migration agent’s written submissions is, as the words themselves make plain, a request that the IAA consider “further and additional information”. That information was said, in part, to be the Jirga decision which went to the question of the veracity of the applicant’s claim to fear harm as a result of being “caught” by his girlfriend’s cousin.
The migration agent was correct to describe the Jirga decision (amongst others) as “corroborating the claim” made by the applicant concerning being caught having sex with his girlfriend.
What does not logically follow is the assertion in the migration agent’s submissions that such corroboration is not “new information” for the purposes of s.473DD. In short, the “claim” (concerning premarital sex) was before the delegate. The “Jirga decision” was not before the delegate. Simply because it may be characterised as information corroborating the applicant’s “existing” claim, does not mean it is not “new information” for the purposes of s.473DD.
In this light, the IAA was correct to find that as “the documents” (relevantly, the Jirga decision) were not before the delegate, the information in it is “new information” for the purposes of s.473DD ([6] at CB 251).
In his submissions before the Court, the applicant sought to rely on Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198 (“BBS16”). The argument was that in BBS16 the IAA, in that case, found that certain information was “new information” for the purposes of s.473DD (See [72] – [74] of BBS16).
The IAA in that case, was required to determine whether it should not consider this new information. In this regard it was required to consider the matters set out at ss.473DD(a) and (b).
The applicant’s submissions before the Court drew attention to the Full Court’s reasoning in BBS16, and the references there (with approval) to the reasoning in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 (see [102] – [114] of BBS16).
The nub of the applicant’s argument was that in the current case, in considering the question of whether, in the circumstances, it (the IAA) must not consider the new information, that is whether “exceptional circumstances” exist (s.473DD(a)), it is not sufficient to only focus on whether the new information could have been provided earlier in circumstances where the applicant knew the importance of putting this information forward at the earlier time.
This is, in the applicant’s submissions, what was found by the authorities on which he relies, to be a too “narrow” approach to the disposition of the question posed by the legislation.
The applicant submitted that what is also required is that the IAA should consider the matter set out at s.473DD(b)(ii). The applicant submits that did not occur in the current case and therefore jurisdictional error is revealed.
What can immediately be said is that a more recent Full Court in DLB17 v Minister for Home Affairs [2018] FCAFC 230 (“DLB17”) stated that (at [22]):
“22. In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.”
(See also AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 (“AQU17”) at [14]).
In the current case ,while the applicant otherwise sought to rely on BBS16, his argument failed to understand the entire reasoning in that case and as that was ultimately explained by the later Full Court in DLB17 at [22] (see above at [47]).
This was said in context (at [20] – [21] of DLB17):
“20. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481, the plurality (Gageler, Keane and Nettle JJ) held (at [30]):
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
(Citations omitted.)
21. Consistently with this position, the Full Court has held that each case must be treated on its own merits and the considerations relevant to the existence of exceptional circumstances will vary from case to case: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 per McKerracher, Murphy and Davies JJ (at [14]).”
In short, as set out above, the IAA in the current case understood correctly, as was plain in the migration agent’s submissions, that the Jirga decision was put forward by the applicant to corroborate his claim concerning being “caught” having premarital sex with his girlfriend.
In that light, the applicant has not pointed (as was respectfully found in AQU17 at [17]:
“…to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially born upon its consideration”.
The “flaw” in the applicant’s argument now is, contrary to authority to infer that in all cases the IAA must have regard to s.473DD(b)(ii). Further, to understand that each case must be considered with reference to its own circumstances.
In the current case, I agree with the Minister that the IAA had considered all the matters required of it. The legislative direction to the IAA was that it must not consider “new information”. The exception to this required the IAA to be satisfied that exceptional circumstances existed and that the applicant satisfied it that either of the matters at s.473DD(b) existed.
In the current case, the only relevant explanation or argument provided by the applicant to the IAA was in the submissions made by his migration agent.
Those submissions asserted that the applicant should be given the opportunity to have the information in the Jirga decision considered by the IAA because he was not told by the delegate at the interview that his lack of evidence in support of the premarital sex claim would lead to the finding made by the delegate.
This is exactly what the IAA considered at [9] of its decision record. The applicant has not now pointed to anything else in the circumstances presented by this case and arising from those circumstances that was relevant to the consideration of exceptional circumstances. There is nothing in the migration agent’s submissions, or elsewhere, to have compelled the IAA to consider s.473DD(b)(ii). (Noting also in that regard that the date of the Jirga decision pre-dated the delegate’s decision by some years).
In all, ground one is not made out.
Ground two asserts that the IAA fell into jurisdictional error because it misled the applicant in relation to the scope of the submissions he was “allowed” to put to the IAA.
Ultimately the ground was explained as follows. The delegate decided that the applicant feared harm from the Taliban, as a Turi Shia, in his home area in Pakistan. However, the delegate found that this did not extend to all areas of Pakistan.
The IAA took a “different view”. The IAA was not satisfied that the applicant “would suffer serious harm” in his home area ([51] at CB 264).
In the current case, the applicant was given a “Practice Direction” (“PD”) made by the President of the IAA (CB 218). The applicant now draws attention to [20] of the PD:
“20. For the purposes of the review, you may provide a written submission on the following:
·why you disagree with the decision of the Department
·any claim or matter that you presented to the Department that was overlooked.”
Subsequently the migration agent sent submissions to the IAA (CB 234 – CB 240). (The same submissions discussed above in relation to ground one). The submissions noted, relevant to the argument now, that the delegate had found the applicant would suffer serious harm in his local area, but not the whole of the country. (With reference to ss.5J(1)(a) and (b), and s.5J(1)(c) of the Act).
The applicant’s submissions to the IAA did address, amongst other things, the delegate’s finding that the: “…real chance of persecution does not relate to all areas…” of Pakistan ([13] – [16] at CB 238 – CB 239).
The submissions did not address in any great detail the risk of harm faced by the applicant as a Turi Shia in his home area. Noting that this was a point in respect of which the delegate had found favourably for the applicant.
The argument continues with the assertion that the applicant has a “right” within the scope of Part 7AA of the Act to make submissions to the IAA (CDH16 v Minister for Immigration and Border Protection [2018] FCA 668 at [85], Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 at [44] – [49]).
The applicant submitted that Part 7AA of the Act does not have any provision that imposes a restriction on the contents of submissions to the IAA. It was therefore open to the applicant to have made submissions as to why the IAA should maintain the finding made by the delegate. The importance of such a submission, in the applicant’s view now, is that the IAA took a different view on a point of considerable importance to the applicant’s case.
In that context therefore, the PD (at [20]) was misleading because it directed submissions to be only on the issue of any disagreement with the delegate’s decision or any matter that the applicant may claim that the delegate overlooked.
That is, it was misleading because the PD invited submissions on why he disagreed with the delegate’s decision, and did not invite submissions on points he agreed with, and on which the IAA found differently.
In short, the applicant’s argument was that [20] of the PD makes a representation that is inconsistent with the applicant’s right to make submissions, which in turn is “implicitly” granted by the Act (with reference to s.473DA and s.473DB of the Act).
The Minister relied on two Full Court authorities. One, DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (“DGZ16”) in general, and in particular at [72] and [76], for the proposition that the PD is not misleading simply because it does not put the applicant on notice that the IAA may make a different finding of fact to those of the delegate. The submission was that the IAA was entitled to proceed to do this without notice to the applicant.
In DGZ16 the Full Court stated (at [72] and [76]):]
“72. In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
…
76. It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.”
Two, Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 (“CLV16”) at [43]:
“43. It is not to be lightly assumed, of course, that the Practice Direction is either misleading or (wholly or in part) invalid. Indeed, Senior Counsel for the Minister shrank from advancing such a submission. The highest the Minister’s submission rose was to contend that paras [20] and [21] of the Direction were “incomplete”.”
The central core of the applicant’s complaint in ground two is that PD [20] was misleading because it sought to impermissibly limit the scope of submissions that may be made to the IAA.
I do not understand PD [20] to impose any such limitation, particularly when read in the relevant statutory context of Part 7AA of the Act.
Plainly a case is only referred to the IAA if the delegate finds adversely to an applicant’s application for the visa.
The first dot point at PD [20] is clearly directed to that fact:
“…why you disagree with the decision of the Department”.
The context for this, in the current case, is that the delegate ultimately decided adversely to the applicant. But that reasoning, as in the current case, may contain findings favourable to the applicant. These findings are still part of the reasoning that informs the, ultimately, adverse decision.
PD [20] does not state that an applicant may only make submissions on adverse findings. Rather, it invites submissions on the “decision”, in context, as a whole.
The PD (at [20]) “allows” written submissions as to “why” the applicant disagrees with the delegate’s decision. The use of the word “why” plainly invites the applicant’s reasons, or his own reasoning, as to “why” he disagrees with the delegate’s decision.
This then invites “reasoning” by the applicant. The invitation to make submissions is not to just make a simple statement of disagreement with the conclusion reached by the delegate. It is an invitation to provide the “why” (reasons) for that disagreement. Such an invitation can only be understood as inviting a meaningful engagement with the delegate’s reasoning, including the findings made, that led to the conclusion made by the delegate (the decision).
There is nothing at PD [20], or elsewhere, to say that that is confined to addressing only adverse findings.
The delegate and the IAA reached the same conclusion in relation to the Turi Shia claim. That is, the delegate and the IAA reached the same conclusion in relation to the question posed by s.5J(1)(c) of the Act. However, as is set out above, the path of reasoning used by each of them was different. PD [20] invites the applicant to address the reasoning of the delegate with which he disagrees, with a view of influencing the reasoning of the IAA.
This view of PD [20] “mirrors”, with respect, the view of PD [21] taken by the Full Court in DGZ16 (see [104] – [107]). As the Minister submitted, at [104], the Full Court stated:
“Neither, in light of what we have said above, do we accept that [21] directly inhibits the ability of an applicant to address the issues in his or her case…”.
I agree with the Minister that that also is applicable to PD [20]. In all, therefore, ground two is not made out.
Conclusion
Neither ground of the further amended application is made out. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 3 May 2019
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