FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHS17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1011 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of the Immigration Assessment Authority (Authority) affirming decision not to grant applicant protection visa – whether Authority applied a narrow construction of s.473DD when determining whether there were exceptional circumstances justifying its considering new information – whether the Authority made unreasonable or irrational findings – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), pt.3, sch.1 |
| Applicant: | AHS17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 215 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 1 October 2019 |
| Date of Last Submission: | 15 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Counsel for the First Respondent: | Mr J Kay Hoyle |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The applicant not have leave to rely on the amended application filed on 30 September 2019.
The application is dismissed.
Subject to order 4, the applicant pay the first respondent’s costs set in the amount of $7,206.
The parties have liberty to apply within fourteen days of the making of these orders for an order discharging or varying order 3.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 215 of 2017
| AHS17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Sri Lanka, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
Procedural background
The matter came for hearing before me on 1 October 2019. On 30 September 2019 the applicant filed an amended application. The Minister was not in a position to deal with the amendments at the hearing. After discussing with both counsel for the Minister and the applicant, who is not legally represented, the course I should follow, I decided to hear submissions on the grounds contained in…
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- Case
- [2020] FCCA 1011
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the Immigration Assessment Authority had applied a narrow construction of s 473DD of the Act when determining whether exceptional circumstances justified its consideration of new information, and whether the Authority had made unreasonable or irrational findings in its assessment.
The Court considered the principles established in *DLB17 v Minister for Home Affairs*, which addressed similar arguments regarding the Authority's construction of new information and the meaning of "exceptional circumstances" under s 473DD(a). The Court noted that the Authority is not obliged to articulate its reasoning in excessive detail when considering exceptional circumstances, and that the assessment does not always require consideration of matters relevant to s 473DD(b)(ii). However, the Authority is permitted to consider such matters, including assessing the credibility of new information. The Court affirmed that even if new information is considered arguable, the Authority may still test its credibility to satisfy itself as to its truth, a position consistent with broader considerations for establishing exceptional circumstances. The Court distinguished the present case from others where the issue was a failure to consider credibility, finding instead that the Authority had assessed the credibility of new information in determining whether exceptional circumstances existed. Ultimately, the Court found no jurisdictional error.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
The second case on which the Minister relies is the Full Federal Court’s judgment in DLB17 v Minister for Home Affairs.[36] In that case the visa applicant appellant submitted the Authority made a jurisdictional error in the construction it gave to new information which it found contradicted information the applicant had given to the delegate. The appellant submitted the Authority’s construction of the new information was based on the “slenderest of evidence”, and this manifested a misunderstanding by the Authority of the correct meaning of “exceptional circumstances” in s.473DD(a) of the Act.[37] The Full Federal Court did not accept the appellant’s submissions. Before so concluding, the Full Federal Court set out the following principles:[38]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.[36] DLB17 v Minister for Home Affairs [2018] FCAFC 230[37] DLB17 v Minister for Home Affairs [2018] FCAFC 230, at [17][38] DLB17 v Minister for Home Affairs [2018] FCAFC 230, at [22] Unlike DSD16 and ground 3, the question in DLB17 was not whether the Authority failed to consider the credibility of the new information when assessing whether exceptional circumstances existed justifying the Authority’s considering that information; the question was whether the Authority acted unreasonably or without evidence in finding that the new information contradicted evidence the appellant had given to the delegate. Nevertheless DLB17 is relevant because the Minister submits that the Authority in the case before me did that which the Authority did in DLB17, namely, assess the credibility of the new information contained in the ex-parliamentary member’s letter, when determining whether there were exceptional circumstances justifying its considering that information.