AJF16 v Minister for Immigration
[2018] FCCA 149
•24 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJF16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 149 |
| Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – refusal of a Safe Haven Visa – Iraqi citizen – whether failure to properly consider claims – whether evidence of misinterpretation – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.7AA, Div.3, ss.36, 46A, 65, 375A, 424A, 424AA, 473CB, 473DA(1), 473GA, 473GB, 474, 476 |
| Cases cited: ALZ16 v Minister for Immigration & Anor [2017] FCCA 2631 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 |
| Applicant: | AJF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 65 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing dates: | 21 March and 19 December 2017 |
| Date of Last Submission: | 19 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 24 January 2018 |
REPRESENTATION
| For the Applicant: | In person (on 21 March 2017) and Mr F Farris (of Counsel, on 19 December 2017) |
| Solicitors for the Applicant: | Rebus Legal |
| Counsel for the First Respondent: | Mr PR Macliver (on 21 March 2017) and Mr P Hannan (on 19 December 2017) |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 65 of 2016
| AJF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 17 February 2016 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Safe Haven Enterprise (Subclass 790) visa (“Safe Haven Visa”) under s.65 of the Migration Act.
A copy of the IAA Decision dated 30 May 2017 is at Court Book (“CB”) 110-123.
Background
The background to the Judicial Review application is as follows:
a)the applicant, an Iraqi citizen, arrived in Australia as an unauthorised maritime arrival on 31 October 2012: CB 65;
b)on 8 July 2015, the Minister “lifted the bar” under s.46A of the Migration Act and invited the applicant to apply for a Safe Haven Visa: CB 2;
c)the applicant applied for a Safe Haven Visa on 30 July 2015 making the following claims:
i)a fear of harm at the hands of the Iraqi government informants who have targeted him and threatened to kill him because he refused their orders to obtain illegal evidence: CB 41;
ii)in around July 2012, while working at the Ministry of Justice, members of the local security agency, possibly members of one of the largest political parties in Iraq being the Al Dawa political party, approached him and attended an old lady's house with him where they instructed the applicant to get her to sign fraudulent documents transferring property to them: CB 44;
iii)he has heard these people used to rape women who lived alone and believes they are government informants, however he refused to certify the documents and they said they would kill him if he did not. They came to his workplace every day and carried guns causing him to feel unsafe and flee : CB 44-45;
iv)he is still wanted by the local security people or government informants because his mother told him they have been to their house and asked for him. They have access to immigration records and would be alerted to his presence if he returns to Iraq: CB 45; and
v)he could not go to the police as they were closely related to the same people who were threatening him, and they had expressly told him they would find him anywhere in Iraq so he cannot relocate: CB 45;
d)on 18 December 2015 the Delegate’s Decision was to refuse the applicant a Safe Haven Visa, and on 23 December 2015 the applicant’s Safe Haven Visa application was referred to the IAA: CB 107; and
e)the IAA Decision affirmed the Delegate’s Decision on 18 January 2016: CB 109.
IAA Decision
As the applicant provided no further material to the IAA to consider, all the material before the Delegate was referred to and before the IAA when making the determination, in accordance with s.473CB of the Migration Act: CB 111 at [5].
In the IAA Decision, the IAA:
a)set out the findings in the Delegate’s Decision refusing the applicant a Safe Haven Visa: CB 111 at [2]-[4];
b)set out the applicant’s claims in summary in similar terms to that set out at [3(c)] above: CB 111-112 at [6];
c)accepted that the applicant was a citizen of Iraq: CB 112-113 at [10];
d)found that there was no reason to doubt that the applicant was a member of the Shia Muslim community in Iraq, but was not observant in terms of saying prayers or abstaining from alcohol: CB 113 at [11];
e)accepted that the applicant had undertaken military service in Iraq in 1996 and 1997: CB 113 at [12];
f)found that it was satisfied that the applicant was employed by the Iraqi Ministry of Justice as a clerk between 2005 and 2012: CB 113 at [13];
g)considered the applicant’s claim that he had been harassed by armed men to make him coerce an elderly lady into transferring land was not credible, and that the responses provided by the applicant when the implausibility of the situation was put to him did not resolve the concerns, and thus the IAA was not satisfied the applicant had been threatened by armed men and any fear of harm or persecution upon return to Iraq on this basis was not accepted: CB 113-114 at [14]-[17] and CB 115 at [20], with the IAA specifically observing:
i)at CB 114 at [17] as follows:
17. I am not satisfied these claims are credible. It is implausible that men intent on coercing the transfer of property would invest weeks of time in the attempted intimidation of the applicant when their aims could have been directly achieved by forcing the woman's thumb print on general authorisation forms and obtaining the assistance of a more cooperative official. The applicant's responses with regard to the implausibility of this situation do not resolve these concerns; and simply insist on the importance of official papers and affirm that men of influence would be able to obtain what they want without the applicant's assistance. I am not satisfied that the applicant was directed to facilitate the authorisation of documents by an elderly woman under the direction of armed men, or that the applicant has been threatened by such men.
ii)at CB 115 at [20] as follows:
20. As is noted above, I have concluded that the applicant's claim in this regard, to have been threatened by armed men to convince an elderly woman to authorise documents, is not credible. As I do not accept the claimed events occurred, I am not satisfied the applicant would on this basis face a real chance of persecution upon return to Iraq now or in the reasonably foreseeable future.
h)noted that while the applicant did not claim to fear persecution on account of his being a Shia Muslim, it was necessary to consider country information on the chance of harm and persecution on this basis: CB 115 at [21], but, having done so (including by reference to relevant country information: CB 115 at [22]-[23]), was not satisfied the applicant faced a real chance of persecution upon return to his home area, nor that the security situation in the applicant’s home area gave rise to a real chance of harm from violent crime or generalised violence: CB 115 at [23];
i)as the applicant was only a low level government employee, was not satisfied that there was any chance of harm or fear of persecution upon return to his home area for reason of being a government employee: CB 116 at [25];
j)considered the applicant may face harm if he had to travel through regions where insurgent groups and generalised violence were commonly encountered, however, found he would have access to an airport outside of Baghdad and Iraq’s more restive governorates to return to his home without having to travel through insurgent-affected or generally violent areas, and that there is not a real chance that the security situation in the Basra and Thi Qar governorates will deteriorate to the extent that the applicant would face a well-founded fear of persecution in his home area: CB 116 at [26];
k)considered whether there was any real chance of persecution upon return to Iraq for reason of the applicant’s Shia religion, association with the Iraqi government, or the West, now or in the reasonably foreseeable future by reason of his being targeted by Daesh, or the broader Sunni insurgency, but found (including by reference to country information) that there were no significant problems for returnees to southern Iraq in this respect: CB 117 at [27];
l)in relation to the applicant’s religious practices, and in relation to his consumption of alcohol observed that Shia moral vigilantism had not been a concern in the applicant’s home area, and that the applicant did not claim to have experienced any problems in this regard, and was therefore not satisfied that the applicant's drinking of alcohol or not saying his prayers would, either in itself or in a cumulative manner, result in a real chance of the applicant being persecuted upon return to Iraq by reason of his Shia religion, or his association with the Iraqi government and the West, now or in the reasonably foreseeable future: CB 117 at [28];
m)considered whether the applicant met the criterion for complementary protection, namely whether there were substantial grounds for believing that the applicant would face a real risk of significant harm (as defined in s.36(2A) of the Migration Act), by reference to:
i)the threat from armed men which the IAA had concluded was not credible: CB 118 at [32]; and
ii)did not, for reasons set out earlier in the IAA Decision, face a real chance of suffering serious harm upon return to Iraq for reason of his Shia religion, association with the Iraqi government, or the West, now or in the reasonably foreseeable future: CB 118 at [33];
upon return to Iraq as a consequence of generalised violence or from violent crime, and was not satisfied he would face a real risk of significant harm on this basis upon return to Iraq now or in the reasonably foreseeable future: CB 118 at [34]; and
n)affirmed the Delegate’s Decision not to grant the applicant a Safe Haven Visa: CB 119.
Judicial Review Application
Grounds
The applicant lodged a Judicial Review Application in this Court on 17 February 2016 on the following grounds:
1. The Assessor failed to properly consider my claims;
2. The Assessor was unable to properly consider my claim because the translator was unable to translate my claims correctly.
[Copied verbatim].
Hearing – 21 March 2017
The Judicial Review Application was first listed before this Court for hearing on 21 March 2017 (“First Hearing”) at which the applicant was self-represented. Circumstances arose at the First Hearing whereby:
a)an issue was raised by the Minister concerning a certificate issued by a delegate of the Minister under s.473GB of the Migration Act; and
b)the Court had reason to be concerned about the quality of the interpretation in this Court,
and as a consequence, ordered that the matter be adjourned to a directions hearing on a date and at a time to be fixed: First Hearing Transcript at page 14.
At the First Hearing the Court provided an opportunity for the applicant to provide oral submissions in support of his application. Given the quality of the interpretation the Court places little weight on what was expressed by the applicant during the First Hearing, but notes that:
a)the applicant submitted that the interpreter (presumably before the Delegate) was from Lebanon, and that the interpreter did not understand what the applicant was saying, and the applicant did not understand what the interpreter was saying, because they had a different “accent”: First Hearing Transcript at page 3 (because of the difficulties with the interpretation at the First Hearing the Court is inclined to consider that the reference to “accent” should in fact be a reference to “dialect” but, ultimately, this does not matter because there was a further hearing at which the applicant was represented by a lawyer: see [12]-[13] below;
b)during the First Hearing the Court referred to orders made by a Registrar of the Court on 30 March 2016 (“Registrar’s Orders”) allowing the applicant to file:
i)any amended application, including providing particulars;
ii)any supporting affidavits; and
iii)a written outline of submissions,
and noted that the applicant had failed to do so: First Hearing Transcript at page 4; and
c)the Court told the applicant at the First Hearing that his failure to provide any affidavit evidence to support his grounds of review in the Judicial Review Application meant that there was no evidence of what occurred at the interview before the Delegate: First Hearing Transcript at page 4. It is unclear if the applicant was able to understand this exchange and it need not be considered at length because, as the Court has already indicated, the Court considered that the Judicial Review Application had to be heard afresh on a later date.
Directions hearing – 30 June 2017
At the directions hearing on 30 June 2017 the Court made further orders (“June 2017 Orders”) allowing the applicant a further opportunity to file:
a)any amended application, including providing particulars;
b)any supporting affidavits; and
c)a written outline of submissions,
and the Minister was allowed a further opportunity to file a further written outline of submissions.
Neither the applicant nor the Minister filed any further documents pursuant to the June 2017 Orders.
Hearing – 19 December 2017
The Judicial Review Application was listed for further hearing on 19 December 2017 (“Second Hearing”).
At the Second Hearing the applicant was represented by a lawyer. At the outset of the Second Hearing the lawyer advised the Court that he had been instructed the previous day, but that his firm had previously been the lawyers “on the record” for the applicant during the period May 2017 to August 2017. The Court did not check the accuracy of the latter assertion by the applicant’s lawyer during the Second Hearing, but now notes that there is no record on the Court’s electronic court file of any Notice of Address for Service being filed on behalf of the applicant prior to the Second Hearing.
The lawyer for the applicant made no application for an adjournment of the Second Hearing, and proceeded to make oral submissions in relation to the grounds of the Judicial Review Application. Those submissions are considered hereunder in relation to each of the grounds.
Consideration
Jurisdictional error required
The IAA Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. Such an error will only constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; Craig v The State of South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Jurisdictional error may also arise by reason of a breach of the procedural fairness required by the provisions of the Migration Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”). In circumstances where the IAA is the administrative decision-maker, the requirements of procedural fairness are expressly stipulated in the Migration Act: Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB.
No merit review
It follows from the fact that the IAA Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error, that this Court does not have the jurisdiction to review the merits of the IAA Decision, or determine the applicant’s claim for a Safe Haven Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J.
Ground 1
The applicant submitted that the IAA had failed to consider the applicant’s claim in relation to the agents from whom he said he feared harm. It was submitted that in the applicant’s statement of claim and his protection interview, he outlined agents that were, or that he suspected were likely to harm him. Specifically he referred to the Al Dawa and Badar political parties and the Mahdi army: CB 44 at [49] and CB 77 at [86]. The applicant says that the IAA Decision only referred to these men as “armed men”, and did not make any reference at all to the political parties.
The IAA dealt with the threats from armed men at CB 113-114 at [14]-[17], and again at CB 115 at [20]. What the IAA ultimately found was that the claims were not only not credible, but that:
It is implausible that men intent on coercing the transfer of property would invest weeks of time in the attempted intimidation of the applicant when their aims could have been directly achieved by forcing the woman’s thumb print on general authorisation forms and obtaining the assistance of a more cooperative official.
CB 114 at [17].
The IAA went on the find that it was not satisfied that the applicant “was directed to facilitate the authorisation of documents by an elderly woman under the direction of armed men, or that the applicant has been threatened by such men”: CB 114 at [17].
The IAA then went on to find that as it did not accept that the claimed events occurred there was not a real chance of persecution of the applicant upon return to Iraq now or in the reasonably foreseeable future: CB 115 at [20].
When attention is paid to the claim made it can be seen that what was said in the statement of claim was that in around July 2012 members of a local security agency, whom the applicant believed may have been members of the Al Dawa political party in Iraq who were government informants, and who had authority to go armed into courts, attended the elderly lady’s house with the applicant and instructed him to sign fraudulent documents transferring the property to them: CB 44 at [49]-[51].
The Court notes that whoever these men were they were persons who were armed, and thus “armed men”.
In the Delegate’s Decision it is noted that the applicant referred to “security intelligence people” who could be from the Al Dawa or Badr political parties, or government intelligence, and who were also referred to as being from the Medhi Army by the applicant: CB 77-78 at [86]. Importantly, the applicant went on to say that these persons “wore civilian clothes but openly carried firearms including at the courts where he worked”: CB [77]-[78] at [86]. Again, it is important to note that the persons alleged to be the source of potential harm to the applicant were “armed men”.
The significance of the reference to “armed men” in this context is that the IAA has made a finding in general terms which has subsumed the specific claims made by the applicant, and thus whatever organisation or party the alleged perpetrators of harm upon the applicant might have come from, they were all characterised as “armed men” by the IAA because that is how the applicant described them. For the IAA to then find that the applicant’s account of what harm he feared from these “armed men” did not give rise to a relevant fear of harm of persecution because those claims were not credible and implausible is not a failure to consider the applicant’s claims, but to make a finding at a level whereby the general subsumes the specific in such a way as to have properly considered the claims made by the applicant, or which rejects the factual premise upon which the contention rests, and in neither case does this give rise to jurisdictional error,: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ.
Otherwise, the IAA has:
a)reproduced the relevant provisions from the Migration Act in their entirety: CB 119-123, and has applied the identified provisions of the Migration Act to the circumstances of the applicant: CB 114-118;
b)supported each conclusion made with regard to the evidence before it having expressly considered alternate outcomes, reflecting on the applicant’s responses when the Delegate put to the applicant certain concerns and applying the law to make an informed conclusion: CB 114 at [16] and 116 at [26]; and
c)considered each of the applicant’s claims, and considered any further possible claims not raised by the applicant regarding his religious practices, generalised violence and his safe passage to his home town if he were returned.
In the circumstances, ground 1 establishes no jurisdictional error in the IAA Decision.
Ground 2
At the Second Hearing the applicant’s lawyer took issue with the description of the applicant as a lower level employee: see CB 116 at [24]-[25]. The applicant’s lawyer submitted that this was mis-descriptions as a consequence of misinterpretation. The Court indicated that, assuming that authorities such as Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 (“Ahmed”); Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J (“Martinez”); AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 at [10] per Judge Lucev (“AYZ16”), did not apply to an IAA Decision where the Delegate had been misled as to a result of a misinterpretation, the difficulty for the applicant was that there was still no evidence of any misinterpretation before the Delegate, because no transcript or recording of what occurred before the Delegate had been put before the Court. The applicant’s lawyer accepted that that was the case, and put no further submissions.
The IAA assessed the applicants Safe Haven Visa application on the papers and material it was forwarded by the Department: Migration Act, s.473DB. Without reference to the applicant having ever made claims regarding or questioning the interpretation, the IAA or the Delegate can commit no jurisdictional error where a claim is not clearly made or articulated: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [61] per Black CJ, French and Selway JJ. The applicant had the opportunity to raise concerns with the interpretation services in the actual interview, following the interview, when he was invited to provide addition material to the IAA and on two occasions with this Court.
For misinterpretation to be considered a jurisdictional error it must be inadequate in the sense described in SZRMQ v Minister for Immigration & Border Protection & Anor [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 at [5] and [7] per Allsop CJ (“SZRMQ”) where it was observed that:
5. Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.
7. Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate …
As was observed in SZRMQ at [24]-[25] per Allsop CJ:
The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process… fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done.
…
The preferable way of expressing the matter is that, irrespective of the lack of proved causal connection between the misinterpretation and the reasons, the misinterpretation may be of such character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard.
These comments of Allsop CJ were expressed similarly by Robertson J in SZRMQ at [67] and [72] as follows:
67. …the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant's words had not been mistranslated or, in the case of a non-translation, had been translated…
72. …where the errors are intermittent, care must be taken to evaluate the overall fairness of the hearing as well as the individual instances in order to assess the quality of the process and whether it amounts to the applicant having had a reasonable opportunity to be heard and to present his or her claim.
The applicant attended an interview for his Safe Haven Visa with the Delegate in 17 September 2015 where he made two relevant additions to his claims regarding the exchange with the armed men, and his fears of being killed by a bomb in Iraq: CB 67 at [6]. At the interview the interpreter was asked to assist the Delegate in translating a number of identity documents. When questions were put to the applicant by the Delegate his responses answered or were directed toward answering these questions. When the Delegate put to the applicant the inconsistencies in his family history and locations in the information he provided during his entry interview, he provided the explanations:
He did not list Hala Majid as his sister in his PV application because she did not live with his family or in Hey Soumer.
He did not think it was important. He believed it was a higher priority to say things about himself, rather than his sister.
He was not asked specifically about Hala Majid
None of the responses quoted in the previous paragraph are indicative of misinterpretation at the entry interview, and when other discrepancies were revealed to the applicant he provided detailed explanations and reasons none of which he claims was misunderstood. Having read the Delegate’s Decision and noted the number of opportunities the applicant had to make his claims and address them with the Delegate, and also noting the Delegate actively posed questions to the applicant to which the applicant responded proficiently, no question or possible issue of misinterpretation arises on the face of the Delegate’s Decision. On the material before the Court, there is no evidence of any misinterpretation in relation to the Delegate’s Decision.
The Court’s jurisdiction is to review the IAA Decision, not the Delegate’s Decision which is a primary decision: Migration Act, s.476(2)(a) and (4); Ahmed; Martinez; AYZ16. As such there can be no error in relation to interpretation in the IAA Decision per se because it was a review on the papers and did not involve the applicant giving evidence which could be misinterpreted to the IAA.
Ground 2 must therefore fail because there is no evidence of misinterpretation in support of it, either in, or in relation to, the IAA Decision itself, or otherwise at lower levels of administrative decision-making or evidence-gathering.
The certificate issued under s.473GB of the Migration Act
In this matter the Minister issued to the IAA a certificate under s.473GB of the Migration Act relating to the disclosure of certain information.
The Minister contended that in this case procedural fairness does not require the existence of the certificate to be disclosed to the applicant, unlike Minister for Immigration & Border Protection v Singh & Anor [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 71 AAR 169; (2016) 343 ALR 97, a judgment of the Full Court of the Federal Court relating to s.375A of the Migration Act relating to the disclosure of certain information. The Minister submitted that because Pt.7AA of the Migration Act has no provisions equivalent to ss.424A and 424AA of the Migration Act the judgments with respect to s.375A of the Migration Act are distinguishable, and s.473GB of the Migration Act does not require that the certificate issued under s.473GB of the Migration Act be disclosed to the applicant.
The Minister referred to BVM16 vMinister for Immigration & Anor [2016] FCCA 3183 (“BVM16”) and BBS16 v Minister for Immigration & Anor [2017] FCCA 4; (2017) 316 FLR 431 (“BBS16”). In both of those cases this Court determined that there was no obligation on the IAA to disclose the certificate: BVM16 at [26] per Judge Jarrett and BBS16 at [77] per Judge Driver. BVM16 and BBS16 were followed by the Court in ALZ16 v Minister for Immigration & Anor [2017] FCCA 2631 at [34] per Judge Riethmuller, where it was observed that it was appropriate that the Court follow the law as previously set out by the Court, “until such time as the Full Court [of the Federal Court] deals with the issue”.
The Full Court of the Federal Court considered the issue in Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 (“BBS16 Appeal”). In BBS16 Appeal the Full Court of the Federal Court determined that there was no obligation on the IAA to disclose a certificate issued under s.473GB of the Migration Act: BBS16 Appeal at [85]-[100] per Kenny, Tracey and Griffiths JJ.
In the circumstances, no jurisdictional error is revealed by the failure of the IAA to disclose the existence of the certificate issued under s.473GB of the Migration Act.
Conclusion and Orders
For the reasons set out above, the applicant has failed to establish any jurisdictional error in the IAA Decision. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 24 January 2018