Anl17 v Minister for Immigration and Anor (No.2)
[2020] FCCA 2166
•7 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANL17 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 2166 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming a decision not to grant a Safe Haven Enterprise visa – whether when considering whether there were exceptional circumstances to justify considering new information the Authority failed to consider whether the new information, had it been known by the delegate, may have affected the consideration of the applicant’s claims and, for that reason, had taken an unduly narrow construction of s.473DD(a) of the Act – relief granted. |
| Legislation: Migration Act 1958 (Cth), ss.473DD, 476 |
| Cases cited: AMV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 262 ANL17 v Minister for Immigration & Anor [2020] FCCA 637 BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 |
| Applicant: | ANL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 378 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | Decided on the papers |
| Date of Last Submission: | 8 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher |
| Counsel for the First Respondent: | Ms R Graycar |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The decision of the Authority made on 20 January 2017 affirming the decision (delegate’s decision) of a delegate of the first respondent made on 9 September 2016 not to grant the applicant a Safe Haven Enterprise visa is quashed.
The Authority review the delegate’s decision according to law.
The first respondent pay the applicant’s costs set in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 378 of 2017
| ANL17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 27 March 2020 I published reasons for judgment (earlier reasons) in which I held the applicant failed to establish grounds 3 and 4 of the application for remedies under s.476 of the Migration Act 1958 (Cth) (Act).[1] That application related 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. I also held, however, that grounds 1 and 2 of the application were reasonably arguable to the extent those grounds claimed the Authority made a jurisdictional error of the sort White J held the Authority made in BVZ16 v Minister for Immigration and Border Protection;[2] and I granted the applicant leave to file an amended application to the extent it included ground 5 which, in substance, also claimed the Authority made such an error.
[1] ANL17 v Minister for Immigration & Anor [2020] FCCA 637
[2] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; see also AMV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 262
I made orders that the Minister and the applicant file and serve written submissions that address the merits of grounds 1, 2, and 5 of the amended application, and the question of costs; and that by 1 May 2020 the parties inform my associate whether they require a further hearing in relation to the matters addressed in the written submissions. The Minister and the applicant filed and served submissions, and the parties informed my associate they did not require a further hearing.
In these reasons for judgment, therefore, I consider the parties’ written submissions. More particularly, I consider whether, as the applicant claims, the Authority made a jurisdictional error of the sort White J held the Authority made in BVZ16. Before I consider the parties’ submissions, it would be convenient if I set out the “new information” in relation to which the applicant submits the Authority made an error of the sort White J held the Authority made in BVZ16, and the error the applicant claims the Authority made. The remainder of these reasons assume familiarity with the earlier reasons.
Asserted error
I described the nature of the error White J held the Authority made in BVZ16 in paragraphs 49-52 of the earlier reasons. In short, it consists of the Authority applying “an unduly narrow interpretation of the term “exceptional circumstances””, as that expression appears in s.473DD of the Act, with the unduly narrow interpretation being manifested by the Authority not considering relevant to whether there are “exceptional circumstances to justify considering the new information” matters that may fall within s.473DD(b) of the Act.
The “new information” in relation to which the applicant claims the Authority manifested error consisted of three items. The first is what I described in the earlier reasons as the “purported MP letter”, being a letter dated 15 October 2016 purportedly from a named person from Parliament;[3] the second is what I described in the earlier reasons as the “purported HRC letter”, being a letter dated 15 July 2016 purportedly from a named person from the Human Rights Commission of Sri Lanka;[4] and the third item is what I described in the earlier reasons as the “purported sister’s HRC letter”, being a letter dated 15 July 2016 purportedly from the applicant’s sister to the Human Rights Commission of Sri Lanka.[5]
[3] ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [20]
[4] ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [22]
[5] ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [25]
In the earlier judgment I found it was reasonably arguable that, when determining whether there were exceptional circumstances to justify the Authority considering the new information the applicant’s representative provided to the Authority, the Authority did not consider whether the new information, had it been known to the delegate, may have affected the consideration of the applicant’s claims; and, for that reason, it was reasonably arguable that the Authority made an error of the sort White J in BVZ16 found the Authority made.[6] I based that finding on the following matters:
a)The Authority gave detailed reasons for concluding it was not satisfied that s.473DD did not apply.[7]
b)Although the Authority addressed the submissions the applicant’s representative made, it did not address the submissions the applicant’s representative made in relation to the purported HRC letter or the purported sister’s HRC letter that, had the information contained in those documents been known to the delegate, it may have affected the consideration of the applicant’s claims.[8]
c)If accepted, the new information contained in the purported MP letter, or the purported HRC letter, or the purported sister’s HRC letter, would have been highly relevant to the Authority’s assessment of the applicant’s claims, given the findings the Authority had made.[9]
[6] ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [61]
[7] ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [58]
[8] ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [59]
[9] ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [60]
Parties’ submissions
In his written submissions the Minister:
a)sets out a number of legal propositions established by the authorities: the requirements of s.473DD of the Act are cumulative;[10] it is for the applicant to satisfy the Authority of at least one of the matters in s.473DD(b) of the Act;[11] there is no prescribed manner in which an assessment whether to accept new information must be undertaken;[12] it is not necessary for the Authority in every case to consider both paragraphs (a) and (b) of s.473DD of the Act, given the requirements are cumulative;[13] there is no requirement for the Authority to give reasons for the decision whether to exercise the power under s.473DD of the Act;[14] it is a misconception that in all cases the Authority must consider the factors in s.473DD(b) of the Act when considering whether exceptional circumstances exist; and each case must be determined on its own facts because the “overall question for the authority involves a factually idiosyncratic analysis”.[15]
b)submits that the applicant’s representative referred to s.473DD of the Act in relation to the documents referred to at pages 312 and 342 of the Court Book, but the submission he made in relation to it, namely, that “it may have affected the consideration of the referred applicant’s claims” did “not enliven the power to depart from the prohibition on considering new information (s 473DB), particularly by way of s 473DD(b)(ii)”; and that is because to meet that subsection, the applicant must satisfy the Authority that it is credible personal information; it was not previously known; and, had it satisfied those two criteria, it may have affected the consideration of the applicant’s claims; [16] and
c)submits that, even if the Authority were satisfied that s.473DD(b)(ii) of the Act was met, there was nothing in the material provided by the applicant that “provides any basis for determining that the circumstances are exceptional or out of the ordinary”.[17]
[10] Supplementary Submissions for First Respondent, at [9.1]
[11] Supplementary Submissions for First Respondent, at [9.2]
[12] Supplementary Submissions for First Respondent, [at 9.3]
[13] Supplementary Submissions for First Respondent, at [9.3]
[14] Supplementary Submissions for First Respondent, at [9.5]
[15] Supplementary Submissions for First Respondent, at [15]. The quotation is from the judgment of Derrington and Steward JJ in CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203, at [90]
[16] Supplementary Submissions for First Respondent, at [12]
[17] Supplementary Submissions for First Respondent, at [13]
The applicant, in his counsel’s written submissions, responded in detail to each of the matters contained in the Minister’s written submissions. I do not propose to set out the submissions the applicant made, other than to note that the applicant submits the Minister, in his written submissions, does not deal with the applicant’s central claim, namely, that the Authority did not consider whether the condition identified in s.473DD(b)(ii) of the Act was satisfied and, therefore, did not consider whether, if satisfied, that was a matter relevant to determining whether there were exceptional circumstances to justify the Authority considering the purported MP letter, or the purported HRC letter, or the purported sister’s HRC letter.
Did the Authority make a relevant error?
It may be accepted that the legal propositions the Minister identifies are correct and, of course, binding on this Court. None of these propositions, however, gainsay the possibility that, in the circumstances of a particular case, it may be relevant for the Authority, when considering whether there are exceptional circumstances for the purpose of determining whether s.473DD(a) of the Act is satisfied, to consider the nature and quality of information which falls to be considered under s.473DD(b)(ii) of the Act; and, in those cases, it may be relevant for a court exercising judicial review jurisdiction to consider whether the Authority failed to do so, and, if so, whether such failure is to be attributed to the Authority taking an unduly narrow view of s.473DD(a) of the Act. Thus, none of the legal propositions the Minister identifies necessarily means it is not open to me to find that, in the circumstances before me, the Authority, when assessing whether there were exceptional circumstances to justify considering the purported MP letter, or the purported HRC letter, or the purported sister’s HRC letter, did not consider the relevance of the nature and quality of that information and, if it did not do so, to find that its failure is due to the Authority applying an unduly narrow construction of s.473DD(a) of the Act.
That, then, leads me consider whether the matters on which I relied in the earlier reasons for finding it was reasonably arguable that the Authority had made such error satisfy me that the Authority did make such error. Of some significance is that the Minister does not address any of the matters on which I relied in the earlier reasons for finding it was reasonably arguable the Authority made an error of the sort White J found the Authority made in BVZ16. In particular:
a)the Minister does not submit the Authority did not give detailed reasons in concluding that s.473DD of the Act did not apply to the purported MP letter, or to the purported HRC letter, or to the purported sister’s HRC letter, or that that may afford some basis for inferring that, having decided to give reasons in relation to one aspect of s.473DD of the Act, but not on another, the Authority proceeded on the basis that the matters it did not consider were not relevant to the matters it did consider;
b)the Minister does not submit that, although the Authority addresses some of the applicant’s submissions in relation to s.473DD of the Act, it did not address the submissions the applicant’s representative made in relation to the purported HRC letter or to the purported sister’s HRC letter that, had the information contained in these documents been known to the delegate it may have affected the consideration of the applicant’s claims;
c)the Minister does not submit that, if accepted, the new information constituted by the purported MP letter, or the purported HRC letter, or the purported sister’s HRC letter, would have been highly relevant to the Authority’s assessment of the applicant’s claims, given the findings the Authority had made; and
d)the Minister does not submit that, given the matters identified in paragraphs 58, 59, and 60 of the earlier reasons it is not open to find, or, it should not be found, that the Authority made an error of the sort White J found the Authority made in BVZ16.
I am satisfied that the matters identified in paragraphs 58, 59, and 60 of the earlier reasons not only raise an arguable case that, when determining whether there were exceptional circumstances to justify the Authority considering the purported MP letter, or the purported HRC letter, or the purported sister’s HRC letter, the Authority did not consider whether the information contained in those documents, had it been known to the delegate, may have affected the consideration of the applicant’s claims, and, for that reason, the Authority made an error of the sort White J in BVZ16 found the Authority made; I am also satisfied that, based on the matters identified in paragraphs 58, 59, and 60 of the earlier reasons, the Authority did make such an error.
Disposition and costs
I propose to make an order quashing the Authority’s decision and an order that the Authority determine the application for review according to law.
As for costs, the only submission counsel for the applicant has made about costs is that “[g]iven the circumstances of the case . . . the orders sought should be granted”. Because one of the orders sought in the amended application is that the Minister pay the applicant’s costs, I take it that the applicant submits I should order that the Minister pay the applicant’s costs. This submission, however, overlooks the history of the matter.[18]
[18] Which I have set out in ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [3]-[11]
The ground on which the applicant has succeeded was raised on 10 March 2020, being the second occasion the matter was before me, and in circumstances where I had not granted leave for the applicant to raise it. Had the applicant raised the ground in time for it to have been argued and heard by the Minister on that day, the Minister would not have been put to the expense of having to provide further submissions after the hearing. This circumstance, however, should not deprive the applicant, as the successful party, his costs. It should, however, be reflected in the amount for which costs should be set. I propose to order, therefore, that the Minister pay the applicant’s costs set in the amount of $6,000.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 7 August 2020
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