ARY18 v Minister for Home Affairs and Anor

[2020] FCCA 739

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARY18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 739

Catchwords:
MIGRATION – Judicial review – whether the Immigration Assessment Authority failed to consider all of the claims made by the applicant – where no express claim was made – whether the applicant made an ‘unarticulated’ claim under the family unit criteria – whether Authority failed to exercise its discretion under s 473DD – whether Authority acted unreasonably – not established.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CC, 473CD, 473DB, 473DC, 473DD,

473EA, 473FA

Migration Regulations 1994 (Cth), regs.1.12, 1.05A

Cases cited:

Appellant s395/2002 v MIMA (2003) 216 CLR 473

Applicants S134/2002 [2003] 211 CLR 441

BYR17  v Minister for Immigration & Anor (2018) FCA 1324

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Citizenship v SZGUR [2011] 241 CLR 594

Minster for Immigration and Border Protection v BBS16 [2017] FCAFC 176

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte

SZSHK v Minister for Immigration and Border Protection [2013] FCAFC

Applicant: ARY18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 410 of 2018

Judgment of: Judge Obradovic

Hearing date: 10 May 2019

Date of Last Submission: 10 May 2019

Delivered at: Parramatta

Delivered on: 3 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Olivier

Solicitors for the Applicant: West Side Legal

Counsel for the Respondents: Mr Swan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Amended Initiating Application filed 5 October 2018 is dismissed.

2. The applicant is to pay the costs of the first respondent in the amount of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 410 of 2018

ARY18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The applicant is a citizen of Iraq.

2. On 26 November 2012 the applicant, a minor at the time, arrived in Australia as an unauthorised maritime arrival and was accompanied by his older brother (“F”) who was aged 30 years.

3. On 2 July 2016 the applicant applied for a subclass 785 temporary protection visa on the basis that both he feared persecution in Iraq by the Shia militia group (“the militia”) due to his family’s involvement with the police force and the Iraqi military fighting the militia.

4. In support of his application, the applicant raised the following[1]:

   a)F had joined the police force in 2005. Subsequently, F was assigned to a government department. The militia threatened F frequently because of his work. In 2012, F was threatened by men who tried to force him to let a truck into Iraq;

   b)The applicant’s other brother (“O”) was a sergeant in the special forces and used to operate with the Coalition forces in Iraq;

   c)In August 2012, the applicant’s father found a letter issued by the militia threating to kill F and O[2];

   d)In September 2012, militia members raided the applicant’s home and killed O. The next day, in a phone call, the militia threatened F that they would kill him and the applicant. The applicant and F fled Iraq together in October 2012;

   e)The applicant claimed to fear harm on the basis that he would be targeted by the militia who were after his family as they were perceived to be loyal to the coalition forces.

   [1] First Respondent’s Outline of Submissions filed on 3 May 2019.

   [2] The letter was however not shown to the brothers as the applicant’s father was an illiterate man, who thought the letter might be one of the brothers’ documents so he put it away without telling the brothers.

5. On 11 April 2017 the applicant’s temporary protection visa was refused by the Minister’s delegate.

6. The delegate found that:

   a)The applicant was “credible in most of his claims”;

   b)The applicant’s claims were consistent with independent country of origin information;

   c)The applicant’s brother O was murdered in Iraq by the militia group; and

   d)The older brother F had been threatened by the militia group and had therefore subsequently fled Iraq.

7. The delegate did not accept that the applicant was personally named in the threatening phone call received on 2 September 2012. The delegate refused the applicant’s temporary protection visa application.

8. On 18 April 2017, the delegate’s decision was referred to the Immigration Assessment Authority (“Authority”) for fast tracked review under Part 7AA of the Migration Act 1958 (Cth) (“the Act”).

9. On 18 January 2018, the Authority determined the applicant’s case. It affirmed the decision of the delegate not to grant a temporary protection visa.

10. The Authority’s had regard to the review material as well as the applicant’s submission. It summarised the applicant’s claims and found that O had been killed by members of the militia; and that it was highly likely that O was targeted for his involvement in past action against militia groups but that the applicant’s claim that the militia were targeting him was unconvincing.

11. The Authority did not accept that:

    a)F received a phone call from the militia threating the applicant;

    b)That the applicant was of any adverse interest to any Shia militia group or any other armed group, for any reason related to his brothers’ past employment, at the time the applicant left Iraq;

    c)The militia had visited the applicant’s home looking for him for any reason associated with his brothers’ employment; and

    d)The applicant’s family is, or was, perceived by the militia to be opposed to them and thus did not accept that the applicant was of adverse interest to any Shia militia on that basis.

    As such, the Authority concluded that the applicant would not face a real chance of harm for any reason related to the past employment of his brothers.

12. The Authority found that the applicant was a non-practicing Muslim, but was not satisfied that the applicant would suffer harm on the basis of his failure to practice the Muslim faith, or his private opposition to aspects of Islam.

13. The Authority did not accept that the applicant would face a real chance of harm on his return as a result of current instability or lack of peace and order in Iraq.

14. The Authority was not satisfied that the applicant met s36(2)(a) or s36(2)(aa)of the Act.

15. The applicant seeks judicial review of the decision made by the Authority on 18 January 2018.

F’s Visa Application

1. On 2 July 2016, F separately applied for a subclass 785 temporary protection visa.

2. F’s visa application, which was a separate application, was refused on the same day as the applicant’s visa application.

3. F’s matter was also subsequently referred to the Authority for fast tracked review under Part 7AA of the.

4. On 14 September 2017 the Authority determined that F was at a real risk if he returned to Iraq and accordingly he would be eligible for a protection visa under s36(2)(aa) of the Act. The Authority remitted the decision to the delegate for reconsideration on that basis.

5. On 2 February 2018 F was granted a temporary protection visa.

Determination

1. A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the Authority to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.

2. In order to succeed, the applicant must establish that the Authority’s decision is affected by jurisdictional error.

3. As made abundantly clear by the High Court[3], on judicial review, a decision of the Authority must be considered in light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or the applicant’s lawyers, at some later stage in the process[4]. Likewise, it is the role of the Authority to consider the application and the criteria which that application has to meet, not the criteria for an application, never made, which might have been put on another basis.[5]

   [3] See Appellant s395/2002 v MIMA (2003) 216 CLR 473 at [1] per Gleeson CJ

   [4] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31]

   [5] Ibid. See also Appellant s395/2002 v MIMA (2003) 216 CLR 473 at [37]

Ground 1

1. This was the primary and core ground of the applicant’s judicial review application.

2. The applicant asserts that:

   a)The Immigration Assessment Authority failed to consider the applicant’s claim that he was eligible for a protection visa by reason that he was a member of the family unit of a person who was entitled to a protection visa pursuant to s36(2)(b) and (c) of the Act (“family unit criteria”).

   Particulars:

   i)The applicant submits that it was clear from the information provided in his application for temporary protection visa, albeit not expressly articulated by him, that he was seeking a protection visa under the family unit criteria;

   ii)In his submissions made to the Authority it was expressly stated that he had arrived in Australia as F’s dependent, that F had also made a protection visa application, and that F’s claim was being reviewed or had been reviewed by the Authority[6];

   [6] CB 108

3. It has been well established that the Authority is only required to consider claims where they are either[7]:

   a)The subject of substantial and clearly articulated argument, relying on established facts; or

   b)Clearly emerge from the materials.

   [7] AYY17 v Minister for Immigration and Anor (2017) FCCA 2886 (“AYY17”) at [18]

4. It is not in dispute in the present proceedings that the applicant’s visa application form did not expressly state that the applicant was applying for a protection visa pursuant to the family unit criteria. It is also not in dispute that the Authority did not consider any claim based on the family unit criteria.

The material before the Authority

1. The following appears in the material which was before the Authority:

   a)In respect of the entry interview:

   i)The applicant is noted to have arrived as an unaccompanied minor.[8]

   [8] CB 1

   ii)Present during the applicant’s entry interview was the applicant’s brother F, who was at the time a family member residing at Christmas Island.[9]

   [9] CB 1, 7

   iii)The applicant provided information that he had a family member, his brother F, travel with him on the boat. [10] (This was the same brother who was residing at Christmas Island with the applicant and who accompanied him at the entry interview.)

   [10] CB 9

   iv)In answer to the questions about previous countries of residence, the applicant stated he lived in Indonesia for one and a half months, that he arrived there on a flight and that he had a visa for Indonesia. “When we arrived in Indonesia someone met us and took our passports.”[11]

   [11] CB 10

   v)In respect of the travel arrangements to Australia, the applicant said that his brother F had made the arrangements, that he told him that they would be leaving and that he paid the moneys for travel without the applicant knowing how much or to whom.[12]

   vi)There are further references to the brother F speaking to people in Malaysia following which the applicant and F were taken to a place where they stayed, then to the airport in Malaysia and being met by a person in Indonesia who took them out a different exit at the airport. F then called someone and they were taken to a place in a mountain area, where they spent some time and then one night they were picked up and taken to the seashore where they boarded a boat.[13]

   vii)In answer to the question why he chose Australia as his destination, the applicant answered “I don’t know my brother brought me here.”  He then further said that if he is returned to his country of residence that he would face the “same destiny as my brothers”.[14]

   b)In respect of the application for a protection visa:

   i)The applicant raised his own claims for protection.[15]

   ii)The applicant’s brother F was not noted in Part B of the application as a member of the same family unit who is in Australia but not included in the application.[16] However, in Part C of the application, the applicant’s brother F was noted as a family member who is in Australia but has not been included in Part B.[17] F was also noted as a family member who travelled with the applicant or who resides in Australia and with whom the applicant is in contact.[18] Further to the answer about “personal contacts in Australia” who may include family members, the applicant answered “No.”[19]

   iii)The accompanying statutory declaration included information that the applicant, his parents, F and his wife and children (as well as the brother O who was murdered) all lived in the same house. After O’s murder, threats were made which resulted in the applicant and F fleeing Iraq together.[20]

   iv)The applicant appointed a migration agent to act on his behalf in respect of his application[21].

   [12] CB 12

   [13] CB 13

   [14] CB 16

   [15] CB 26

   [16] CB 27

   [17] CB 42

   [18] CB 43

   [19] CB 44

   [20] CB 62-63

   [21] CB 71

   c)In respect of the submission provided to the Authority on 27 May 2017:

   i)The notes in relation to the applicant included the following:

   The applicant is a brother of another applicant [IAA matter number]… the applicant arrived in Australia [as a minor] depending on his brother.[22]

   [22] CB 108

   …

   The applicant is vulnerable person who was targeted just because of his association with his brothers, as a member of this family (psg).

   ii)The Discharge Referral from hospital for the applicant, in respect of an injury suffered by the applicant before his visa application, states that the applicant was discharged “to the care of his family”.

2. Detailed submissions were made on behalf of the applicant in respect of the entry interview and application form lodged by the applicant, identifying references to F to the effect that:

   a)The applicant had travelled to Australia as a minor and a dependent of his brother;

   b)There was at least an error one way or another regarding whether the applicant and F were included in the same application;

   c)There was a clear inference from the interviews that F would also have a protection visa claim; and

   d)It was apparent on the material before the Authority that the applicant was likely still to be dependent on F and therefore a member of the same family;

   Therefore making it clear on the face of the materials before the Authority that the applicant had a claim for a protection visa by reason for the family unit criteria.

3. It was submitted on behalf of the applicant that:

   [i]t was clear… that the Applicant had such a claim from the submission provided to the IAA by the Applicant’s representative… In the submission, it was expressly stated that the Applicant had arrived in Australia as F’s dependent, that F had also made a protection visa application, and that Fs (sic) claim was being reviewed or had been reviewed by the IAA (by reference to F’s IAA reference number).

4. It was further submitted that based on the submission and the reference to the applicant and F leaving Iraq together that the “brothers’ protection visa applications were related.”

5. It was submitted on behalf of the respondent that nothing in the note to the Authority or anything in the material before the delegate, squarely put the Authority on notice that the applicant was making a claim as a member of a family unit. Indeed, it was submitted on behalf of the respondent that the applicant’s claim was based on his own fears of harm including being threatened as a member of a family, which was a particular social group for the purposes of the application. As such it was said that there was no claim arising pursuant to the family unit criteria.

Court’s Determination

1. While the Court is not required to consider whether the Applicant satisfied the family unit criteria and therefore could have made a claim based on the family unit criteria, the Court is required to determine whether such a claim was made by the applicant, that is, whether it clearly emerges on the materials.

2. In respect of a claim which clearly emerges on the materials[23]:

   a)Such a finding is not to be made lightly;

   b)The fact that a claim might be said to arise from materials is not enough;

   c)To clearly emerge from the materials, the claim must be based on established facts;

   d)There is no precise standard in determining whether an unarticulated claim has been squarely raised; and

   e)Understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

   [23] AYY17, supra, at [18]

3. It is therefore necessary to have regard to the family unit criteria in order to be able to determine whether a claim pursuant to that criteria is apparent on the material.

4. Regulation 1.12 Migration Regulations 1994 (Cth) defines the term “member of the same family unit” to be, relevantly:

   (d)A relative, of the family head… who:

   ii)Does not have a spouse or de facto partner; and

   iii)Is usually resident in the family head’s household; and

   iv)Is dependent on the family head.

5. Furthermore, regulation 1.05A provides that a person is dependent on another person, relevantly, if the first person is:

   Wholly or substantially reliant on the other person for financial, psychological or physical support.

6. The applicant was represented by the same migration agent in filling out his visa application, before the delegate and also during the Authority review process. In such circumstances, the Court is less likely to find that an unarticulated claim squarely arose on the materials.[24]

   [24] AYY17, supra, at [18], [30]; SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [37]

7. The applicant’s visa application made it clear that the applicant was making his own application: the applicant, indicated on the visa application that he alone was making this application and that he had no other personal contacts in Australia, despite the fact that his brother F was also in Australia at the time.

8. Any reference to F was either made in the context of the applicant’s travels to Australia, his own fears of harm and to ultimately further his own claims for protection. The applicant failed to expressly inform the Authority, that F was eligible for a protection visa and that the Authority themselves had remitted F’s application to the delegate. The applicant had approximately four months to do so.

9. Even after being invited to provide further information with respect to the delegate’s decision, including why the applicant disagreed with the delegate’s decision and to highlight any claims that may have been overlooked, the applicant still failed to expressly articulate any claim under the family unit criteria.

10. In the Court’s view, the note provided as part of the written submission to the Authority did not go as far as to introduce or deviate away from any claims as expressed by the applicant thus far. It was therefore entirely open to the Authority to consider the material referring to F as evidence to substantiate the applicant’s claim and not to consider it as material furthering an ‘unarticulated’ claim.

11. To suggest that a claim was implicitly articulated on the materials because of a reference to another person’s visa application or because of a reference in the discharge form to “his family” in light of the explicit claim made by the applicant is far-fetched and fanciful. 

1. As such, it was not apparent on the material before the Authority that the applicant was making a claim as a dependent of F on the basis of the family unit criteria.

2. It should also be noted[25] that the reference in the delegate’s decision[26] to the applicant not being a member of a family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant was not a finding per se but simply a statement of the fact that the applicant did not make any such claim. This in itself is a separate ground raised by the applicant on judicial review, and is addressed further below in these reasons.

   [25] For abundant caution and by virtue of the fact that pursuant to s 473CB the delegate’s reasons are part of the material which is referred to the Authority

   [26] CB 86

3. The Court finds that the material before the Authority would not have suggested to a reasonably competent decision-maker that the applicant was attempting to demonstrate that he is “usually resident in … [F’s] home” or that he was a dependent of F not only in the general sense, but particularly that he was “wholly or substantially reliant” on F for “financial, psychological or physical support”.[27]

   [27] BYR17  v Minister for Immigration & Anor [2018] FCA 1324 (“BYR17”) at [31]

4. Therefore, the Court finds that Ground 1 has not been established.

Ground 2

1. The applicant asserts that:

   a)The Immigration Assessment Authority failed to consider the exercise of its discretion to consider new information under s.473DD.

   Particulars:  

   (i)The applicant submits that the Authority did not appear to expressly consider the ‘new information’ that F had made an application for a protection visa, that it had been reviewed by the Authority, and that the Applicant arrived in Australia as his dependent.

   (ii)The applicant further submits that the Authority failed to state whether the information considered was ‘new information’ within the meaning of s.473DC and if considered as ‘new information’ would have provoked the exercise of its discretion under s.473DD.

2. The applicant argued that:

   a)The Authority acknowledged that the applicant’s representative had provided it with submissions and clinical records;

   b)The Authority did not state whether it considered the information contained in these materials to be “new information” for the purposes of s.473DD; and

   c)If it did consider the information to be “new information” then the Authority failed to consider the exercise of its discretion to consider it under s.473DD.

   This failure is said to amount to jurisdictional error.

3. It was submitted on behalf of the respondent that the Authority had no responsibility to include reasons in relation to procedural decisions made in respect of exercising its discretion under s.473DD.

4. The respondent further submitted that, in any event, the ‘new information’ asserted by the Applicant was not relevant to the matter arising on the Authority’s review as no claim for protection under the family unit criteria was being made and so information about F’s protection visa application was not ‘new information’.

5. It is appropriate to firstly address the legislative context of the Authority’s task under s473DD. The role of the Authority is to review the delegate’s decision as set out in Part 7AA of the Act.

6. Division 3 of Part 7AA addresses the manner in which the Authority can conduct such reviews. Subject to Part 7AA, the Authority must review a fast track reviewable decision refereed to it on the papers, that is, by considering the review material provided to it under s 473CB“without accepting or requesting new information and without interviewing the referred applicant”.

7. Notwithstanding this, s473DC provides that:

   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.

   (2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)in writing; or

(b)at an interview, whether conducted in person, by telephone or in any other way.

1. Further, s 473DD governs the circumstances in which the Authority may consider that new information put forward by the referred applicant. It provides:

   Considering new information in exceptional circumstances

   For 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:

   a.was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   b.it 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.

2. Whether information is “new information” is a matter to be determined by having regard to the legislative provisions. Whilst the requirements of subparagraphs (a) and (b) of s473DD are cumulative, they may nevertheless overlap with the effect that the Authority’s consideration of either or both of the limbs in subparagraph (b) may inform the Authority’s satisfaction under subparagraph (a) as to whether there are “exceptional circumstances” to justify considering the new information[28].

   [28] Minster for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]

3. There is nothing in the material before the Authority which goes to the question of whether the submission and the discharge document:

   a)Were not, or could not have been, provided to the delegate before the delegate’s decision was made; or

   b)That the information 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.

4. It is also difficult to understand from the material what the exceptional circumstances might have been which would have led the Authority to consider the material, notwithstanding the overlap referred to earlier. 

5. The decision to exercise the discretion afforded under s473DD is procedural in nature and a discussion as to the use of that discretion is not required in the Authority’s reasons.[29]  The Authority is required to set out the decision of the review, the reasons for that decision and the day and time the decision was made.[30]

   [29] Minister for Immigration and Citizenship v SZGUR [2011] 241 CLR 594 at [31],[32]

   [30] Migration Act 1958 (Cth), s 473EA

6. Fairly read in the context of the record of decision and reasons, the mere fact that the Authority did not address in its reasons whether the information was “new information”, its discretion to exercise s473DD or any other discretionary obligation taken along the away does not amount to jurisdictional error.

7. In any event, the “new information”[31] was not relevant to an issue arising on the Authority’s review, as the applicant did not make any claim based on the family unit criteria. Even if the Authority failed to consider it, that failure was not material to the Authority’s decision[32]. 

   [31] Albeit it has not been established it is such

   [32] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]

8. Therefore, the Court finds that ground 2 has not been established.

Ground 3

1. The applicant asserts that:

   a)The Immigration Assessment Authority failed in its duty pursuant to s473CC

   Particulars:

   (i)The applicant submits that the delegate’s decision includes a finding that applicant was not eligible for a protection visa under the Family Unit Criteria.[33]

   (ii)The applicant further submits that the Authority was required to review the findings by the delegate and make an assessment de novo of the Applicant’s eligibility under the Family Unit Criteria.

   [33] CB 86

2. It was submitted by the respondent that the delegate’s decision, when read as a whole, did not reflect an affirmative decision that the applicant did not satisfy the requirements under the family unit criteria.

3. The respondent also submitted that in the event that the applicant did not satisfy the family unit criteria, the Authority was not required to make that determination because it was not an issue that the Applicant was advancing.

4. In the assessment details of the delegate’s decision it provided that the applicant was refused a protection visa for the following reasons:

   “The applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Migration Act 1958”

5. In factually similar circumstances to the present facts, Bromberg J observed in BYR17[34]:

   “…In the context of no express claim being made, and no claim having been considered in the delegate’s reasoning despite its relatively comprehensive nature, the better view is that the delegate only indicated that the Family Unit Criteria was inapplicable because no claim was made, rather than, as the appellant submitted, rejected the claims on its merits.”

   [34] See BYR17, supra, at [48]

6. As such, the Court does not accept that the delegate made a positive finding that the applicant was not eligible for a protection visa by reason that he was a member of the same family unit as F. In fact, the better view is that the assessment details provided a general summary of the content in s36(2) and the inapplicability of the family unit claim as it was not particularly pressed by the applicant.

7. Notwithstanding that the delegate’s decision provides an initial starting point, the Authority is not limited to the matters considered by the delegate nor is the Authority obliged to contemplate all matters considered by the delegate. The Authority is required to address the application for a protection visa afresh, the Authority is not bound to consider issues addressed by the delegate but which are no longer being advanced.[35]

   [35] See BYR17, supra, at [51]

8. It was not apparent nor did it squarely arise from the material before the Authority or even the delegate that a claim under the family unit criteria was being made[36] and so the Authority was only obliged to conduct a review in respect to a case being advanced.

   [36] See Court’s reasons with respect to Ground 1

9. Therefore, the Court finds that ground 3 has not been established.

Ground 4

1. The applicant asserts that:

   a)The Immigration Assessment Authority acted unreasonably in failing to seek further information regarding F’s protection visa application

   Particulars:

   (i)The Applicant submits that since the Authority “was on notice that F had made an application for protection visa, which had been or was the subject of review by the IAA, and that F was likely eligible for a protection visa”[37] it was unreasonable not to exercise the discretion under s473DC.

   [37] Respondent’s written submissions at page 8

2. It was submitted on behalf of the respondent that, in accordance with the submissions in Ground 1, the Authority was not on notice that the Applicant was advancing a claim under the family unit criteria. The respondent argues that the reference to F’s protection visa application was not material relevant to matters under the Authority’s review and so requesting that ‘new information’ would have been ineffective.

3. In Minister for Immigration and Citizenship v Li (“Li”)[38], the High Court has made clear that ‘unreasonableness’ is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to such decision. However, there “is an area within which a decision-maker has a genuinely free discretion” and “does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker” [39]

   [38] [2013] HCA 18

   [39] Ibid at [28], [66] per French CJ

4. The Court is not satisfied that the Authority acted within the meaning of ‘legal unreasonableness’ in failing to ascertain further information regarding F’s visa application. The Authority acted with some degree of intelligible justification. The material before the Authority was not relevant to any claims being articulated notwithstanding that the Applicant had, both the assistance of a migration agent and the opportunity to inform the Authority of F’s favourable outcome.

5. Therefore, the Court finds that ground 4 has not been established.

Ground 5

1. The applicant asserts that:

   a)The Immigration Assessment Authority acted unreasonably by deciding the application when it did.

   Particulars

   (i)The Applicant submits that the Authority new that F was eligible for a protection visa as they had remitted the decision to the delegate for reconsideration on 14 September 2017.

   (ii)The Authority refused the Applicant’s claim on 18 January 2018.

   (iii)The Minister granted F a temporary protection visa on 2 February 2018.

   (iv)The Applicant further asserts that the Authority’ was required to seek further information regarding F’s claim for protection prior to deciding the Applicant’s application and in doing so would have become aware that the Applicant would soon become eligible for a TPV under the Family Unit Criteria, by reason of being a dependent of F.

2. The Respondent asserts that the Authority is permitted pursuant to s473DB (2) and s473FA (1) to make decisions “at any time” and to conduct its review efficiently and quickly.

3. Further, the Respondent submits that whilst the Applicant alleges unreasonableness on part of the Authority – the Applicant themselves failed to inform the Authority of the favourable decision of F notwithstanding that they had four months to do so.

4. The Court accepts the respondent’s submissions. It is not the responsibility of the Authority to undergo a fact finding task to further the Applicant’s claims. It is not logical or rational to suggest that the Authority ought to have waited for the outcome of F’s application before deciding the Applicant’s.

5. Therefore, the Court finds that ground 5 has not been established.

Conclusion

1. For all of the above reasons, the application for judicial review is dismissed with cost.

2. The circumstances of this case are quite unusual.

3. It is one of those rare instances where the Court notes that this matter might be appropriate for Ministerial intervention.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 3 April 2020