Anc17 v Minister for Immigration - [2020] FCCA 707

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANC17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 707

Catchwords:

MIGRATION – Protection – temporary protection visa – refusal – review of Immigration Assessment Authority (“IAA”) decision – whether a person’s occupation could be a characteristic fundamental to their identity or conscience for the purposes of s.5J of the Migration Act 1958.

MIGRATION – AYY17 v Minister for Immigration & Border Protection [2017] FCCA 2886 disapproved.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CA, 473CB, 473BB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 474
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
AYY17 v Minister for Immigration & Border Protection [2017] FCCA 2886
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 679
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant:

ANC17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 366 of 2017

Judgment of:

Judge Cameron

Hearing date:

2 March 2020

Date of Last Submission:

2 March 2020

Delivered at:

Sydney

Delivered on:

30 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Unisaj Legal

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 366 of 2017

ANC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The applicant is a citizen of Iraq who arrived by boat at Christmas Island on 3 April 2013 without a visa permitting him to enter and stay in Australia. On 15 June 2016 he lodged an application for a temporary protection visa (“TPV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Iraq from the Shia militia because of his ethnicity as a Sunni Muslim and because of his previous work as a barber. On 21 November 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”). The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

Definitions

Section 5(1) of the Act relevantly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 707
Decision Date: 30 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by Anc17 against a decision of the Immigration Assessment Authority (IAA) to refuse their application for a temporary protection visa. The central dispute revolved around whether Anc17's occupation could constitute a characteristic fundamental to their identity or conscience for the purposes of section 5J of the *Migration Act 1958* (Cth).

The court was required to determine the scope and application of section 5J of the *Migration Act 1958* (Cth) in the context of a fast-track review by the IAA. Specifically, the court had to consider whether an applicant's occupation could be considered a fundamental characteristic of their identity or conscience, and how the IAA's procedural limitations, particularly its "on the papers" review process and the strict criteria for considering new information under sections 473DB and 473DD, impacted this determination.

Judge Cameron analysed the provisions governing IAA reviews, noting that section 473DB mandates a review based solely on the material provided under section 473CB, without accepting or requesting new information or conducting interviews. The court further observed that section 473DD permits the consideration of new information only in exceptional circumstances, requiring the applicant to demonstrate that the information was not previously available or was credible personal information that may have affected the original decision. The court found that the applicant's occupation, while potentially significant, did not, in itself, meet the threshold of being a fundamental characteristic of identity or conscience as contemplated by section 5J, particularly given the limited scope of the IAA's review. The court also disapproved of the decision in *AYY17 v Minister for Immigration & Border Protection* [2017] FCCA 2886.

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

Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review. Section 473CB relevantly provides:473CB Material to be provided to Immigration Assessment Authority(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:(a) a statement that:(i) sets out the findings of fact made by the person who made the decision; and(ii) refers to the evidence on which those findings were based; and(iii) gives the reasons for the decision;(b)material provided by the referred applicant to the person making the decision before the decision was made;(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; … Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The relevant sections of div.3 relevantly provide:473BB Definitions In this Part…new information has the meaning given by subsection 473DC(1).…473DB Immigration Assessment Authority to review decisions on the papers(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:(a) without accepting or requesting new information; and(b) without interviewing the referred applicant.…473DC Getting new information(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:(a)were not before the Minister when the Minister made the decision under section 65; and(b)the Authority considers may be relevant.…473DD Considering new information in exceptional circumstancesFor 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.