AHS17 v Minister for Immigration

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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
Migration Act 1958 (Cth), ss.5H(1), 36(2)(aa), 473CC, 473DB, 473DC, 473DD, 476

Cases cited:

ANL17 v Minister for Immigration & Anor [2020] FCCA 637

DLB17 v Minister  for Home Affairs [2018] FCAFC 230

DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782

DZU16 v Minister for Immigration [2017] FCCA 851
Minister for Immigration and Border Protection v AMA 16 [2017] FCAFC 136

Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28

MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

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

  1. The applicant not have leave to rely on the amended application filed on 30 September 2019.

  2. The application is dismissed.

  3. Subject to order 4, the applicant pay the first respondent’s costs set in the amount of $7,206.

  4. 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

  1. 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

  1. 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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Details
Case
[2020] FCCA 1011
Decision Date

CaseChat Overview and Summary

This matter concerned an application for remedies under s 476 of the *Migration Act 1958* (Cth) brought by the applicant, AHS17, against the Minister for Immigration. The dispute arose from the Immigration Assessment Authority's decision to affirm the Minister's earlier decision not to grant the applicant a protection visa. The case was heard by Judge Manousaridis in the Federal Circuit Court of Australia.

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for 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.