Ajn19 v Minister for Immigration

[2020] FCCA 3432

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJN19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3432

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – where the Secretary breached s 473CB of the Migration Act 1958 (Cth) (“the Act”) by failing to consider certain other information – where the Authority had turned its mind to exercising its powers under s 473DC of the Act in respect of that information – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CB, 473DC, 473DD, 476

Applicant: AJN19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 201 of 2019

Judgment of: Judge Street

Hearing date: 16 December 2020

Date of Last Submission: 16 December 2020

Delivered at: Sydney

Delivered on: 16 December 2020

REPRESENTATION

Counsel for the Applicant: Mr J Gormly via Microsoft Teams

Solicitors for the Applicant: Sydney West Legal and Migration

Counsel for the Respondents: Mr T Reilly via Microsoft Teams

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Paragraph 2(b)-(e) of the subpoena to produce issued to the First Respondent filed 9 April 2020 be set aside pursuant to r 15A.09 of the Federal Circuit Court Rules 2001 (Cth).

2. The further amended application filed on 10 December 2020 is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 16 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 201 of 2019

AJN19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Pt 7AA of the Act made on 14 January 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. 

3. The applicant was found to be a Tamil from a particular area, and arrived in Australia from Nauru in October 2013.

4. In summary, the applicant claimed he feared harm from the Sri Lankan authorities because of his association with the Liberation Tigers of Tamil Eelam (“LTTE”). 

5. On 13 November 2018, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise Visa. 

6. The Authority, in its reasons, identified the background to the Safe Haven Enterprise visa application, had regard to the material given by the Secretary under s 473CB of the Act, and also took into account submissions that were advanced and considered the same, consistently, with the whole of the limbs of s 473DD of the Act.

7. Materially, for the purposes of the present case, the Authority then turned to consideration of whether it should exercise its powers under s 473DC of the Act, in paragraph 8 of its reasons and, in that regard, referred to a suggestion that the applicant’s time on Nauru gave rise to circumstances where there should be an obtaining of any assessment made by the Nauruan authorities on the applicant’s asylum claim in Nauru. The Authority expressly identified that the referred materials under s 473CB do not include information regarding any possible assessment in Nauru.

8. The Authority then referred to having considered the utility of information “regarding any assessment conducted in Nauru and its relevance to the applicant’s SHEV application”. That was clearly a reference to the information regarding the assessment at large, and includes the information in the present case, in respect of which, the applicant contends that there was a material breach in respect of s 473CB of the Act giving rise to a jurisdictional error.

9. The Authority referred to the nature of the assessment that was required under the Act, and considered any information regarding a possible assessment in Nauru would be of limited relevance to the Authority’s assessment, and referred to the purpose of the Authority’s review, being to assess protection obligations in the context of Australian law, and was not satisfied that any assessment or decision which may have been made within the Nauru Refugee Status Determination process in the jurisdiction of Nauru would be of sufficient relevance to this review.

10. The Authority identified that, in those circumstances, it was not satisfied that the circumstances warranted the getting of information in this regard. The reference to the getting of information is clearly a reference to the powers of the Authority under s 473DC, and the information is the information regarding any possible assessment. The Court finds that was a reference to the information of the kind that falls within the scope of the applicant’s claims, in the present case, that there was a breach of s 473CB of the Act that is material, because of, relevantly, a message that the applicant had provided in respect of alleged interest in the applicant.

11. Mr Gormly, counsel on behalf of the applicant, correctly drew the Court’s attention to the reasoning of the Authority in paragraph 26, where the Authority identified it “was not satisfied the authorities came looking for the applicant in 2012, or that they issued a demand he attend for questioning after discovering he was not present in a particular location, or that the applicant’s father was detained in 2012, or that the authorities had made continued inquiries about the applicant and harassed and threatened his parents”.

12. Mr Reilly, counsel on behalf of the first respondent, correctly pointed out that the message does not marry up with the description of the letter by the applicant in his statement, and that there are issues of a kind that raise the potential genuineness of the document. That, however, is not a matter for this Court to determine. 

13. The Court accepts Mr Gormly’s submission that the document that was the message included in the information from Nauru was capable of giving rise to a possibility of a different outcome in the conduct of the review. That, however, does not, in the circumstances of the present case, give rise to there being a jurisdictional error. 

14. Mr Gormly has submitted that, had the Secretary complied with the obligations under s 473CB of the Act and provided the Nauru documents including, relevantly, the message, it meets the criteria of materiality in respect of the existing authorities concerning breach of s 473CB of the Act. Mr Gormly submitted that, in those circumstances, the steps taken by the Authority cannot cure or affect what is said to be the jurisdictional error arising from the admitted breach of s 473CB of the Act.

15. The Court does not accept that submission. Whether there is a jurisdictional error must turn on the facts of the particular case. Here, the Authority expressly turned its mind to exercising its powers under s 473DC of the Act. The adverse finding by the Authority in respect of the exercise of its powers under section 473DC of the Act has not been the subject of any challenge in this Court, and it cannot be said to lack an evident and intelligible justification.

16. In circumstances where there was a breach under s 473CB of the Act by the Secretary, but that the Authority has turned its mind to exercising its powers under s 473DC of the Act in respect of that information, the Court does not accept Mr Gormly’s submission that there is, nonetheless, a jurisdictional error because of the alleged materiality of the information. 

17. For the reasons the Court has already given, the Court accepts Mr Gormly’s submission that the information would meet that materiality test in terms of giving rise to the possibility of a different outcome in the conduct of the review, had it been before the Authority.

18. However, where the Authority has turned its mind to the exercise of its powers, under s 473DC of the Act, to get the information the subject of the alleged breach under s 473CB of the Act, the Court does not accept that there is a jurisdictional error in circumstances where the decision by the Authority under s 473DC of the Act is not, itself, the subject of error. The fact that the information may have been material had the Authority exercised its powers under s 473DC of the Act does not give rise to the power being invalidly exercised or to the determination of the Authority under Part 7AA of the Act exceeding its statutory powers meaning that there was no jurisdictional error in the circumstances of this case. 

19. The Court finds that the breach of s 473CB of the Act did not give rise to a jurisdictional error because the Authority expressly considered getting the information and made a valid decision not to do so. There was no excess of statutory authority in the conduct of the review nor was the Authority in this case disabled from carrying the review required by Part 7AA. Because the Authority independently expressly considered the exercise of its powers in respect of the material the subject of the s 473CB breach, there was no disabling of the Authority in the conduct of the review required under Part 7AA. The breach of s 473CB in this case does not give rise to a jurisdictional error.

20. The Court does not find it necessary to determine whether the submissions or the country information would have met the materiality test, although the Court notes that it is not readily apparent that there was any material information of a kind that could meet the materiality test, but the Court has not determined that issue.

21. Given the confined nature of the ground that has been raised, the Court has not further summarised the whole of the reasons of the Authority, which found that the applicant did not meet the criteria under the Refugee Convention and in relation to complementary protection. The Court would have found in Mr Gormly’s favour, but for the consideration of the exercise of the powers under s 473DC of the Act in respect of the very information the subject of the alleged breach under section 473CB of the Act. Accordingly no jurisdictional error is made out and the further amended application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 10 February 2021