AZAFF and Ors v Minister for Immigration and Anor

[2020] FCCA 1540

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFF & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1540

Catchwords:
MIGRATION – Judicial Review – decision of the Immigration Assessment Authority to refuse protection visas – whether the Authority was required to review decision under s. 91W – whether the Authority erred in restricting itself to s. 473DD as a “gateway” for the consideration of new information – whether the Authority’s use of the phrase “exceptional circumstances” indicates error or a failure to consider new information under s. 473DC – not satisfied there is a material error – not satisfied the applicants were deprived of the possibility of a successful outcome.

Legislation:

Migration Act 1958 (Cth) ss.65, 91W, 473CB, 473CC, 473DC, 473DD, pt.

7AA.

Cases cited:

BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR

196; [2019] HCA 34

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217(2018); 353 ALR 600(2018); 92 ALJR 481; [2018] HCA 16

First Applicant: AZAFF

Second Applicant: AZAFG

Third Applicant: AAB18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 1 of 2018

Judgment of: Judge Young

Hearing date: 3 June 2020

Date of Last Submission: 3 June 2020

Delivered at: Darwin

Delivered on: 3 June 2020

REPRESENTATION

Counsel for the first, second and third Applicants: Mr S Ower

Solicitors for the first, second and third Applicant: Camatta Lempens

Counsel for the first Respondent: Ms K Hooper

Solicitors for the first Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.

3. The first applicant pay the first respondent’s costs in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. ADG 1 of 2018

AZAFF

First Applicant

AZAFG

Second Applicant

AAB18

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 11 December 2017 affirming a decision of the delegate made on 20 October 2017 to refuse protection visas to the applicants.  The first applicant is the primary applicant, the second applicant is her sister and the third applicant is the infant child of the first applicant born in 2016.  The first and second applicants arrived from Vietnam in 2011.  They have made various claims but relevantly the delegate concluded that they had unreasonably failed to provide evidence of their identity and accordingly found that the Minister must refuse the grant of protection visas.

3. Sometime after the first and second applicants’ interview with the delegate and three days before the delegate published her decision on 20 October 2017, a letter was sent to the Embassy of Vietnam in Australia seeking travel documents for the child of the first applicant.  The letter disclosed the dates of arrival of the first and second applicants in Australia, the marriage of the first applicant to another Vietnamese citizen and provided various documents to the embassy including an expired identity document, a marriage certificate, and a birth certificate for the child.

4. It is common ground that there was no evidence that the delegate was aware of that letter at the time that she made her decision. The letter was included in the materials given to the Authority by the Secretary pursuant to section 473CB. On 22 November 2017 the Department advised the applicants of the letter and invited them to provide any new information in response to the letter to the Authority. On 25 November 2017 the applicants’ migration agent wrote to the Authority, apparently in response to the Department’s letter, making submissions.

5. Essentially, the migration agent’s submissions complained that it was unfair to send the letter, which could be seen as pre-empting a decision of the Authority.  No submission was made by the migration agent that the applicants were placed at risk of harm or greater risk of harm if they were returned to Vietnam. 

6. The grounds of review are as follows:

   (1)The second respondent failed to exercise its jurisdiction to “review”, within the meaning of subsection 473CC, the correct fast track decision, namely the decision to refuse the applicants a protection visa under section 91W of the Migration Act (“the Act”) but rather reviewed a purported exercise of power under section 65 and thereby committed jurisdictional error;

   (2)The Authority failed to consider the exercise of the discretionary power in subsection 473DC(3) of the Act to seek new information from the applicants in relation to a letter dated 17 October 2017 from Australian Border Force to the Embassy of Vietnam and this failure was, in the circumstances, legally unreasonable.

Ground 1

1. I do not accept the Authority was required to review the decision under section 91W. I accept that the relevant source of power in the fast track review process under part 7AA is section 65 and that section 91W is not a separate source of power to refuse a visa. That section 91W is to be considered as part of the exercise of the power given by section 65 is apparent from subsection 65(1)(a)(iii) which expressly refers to section 91W as is preventing the grant of a visa under section 65.

2. I am fortified in that view by the reference in section 473DC, which is part of Part 7AA, which refers to a decision under section 65. There is no reference in {art 7AA to section 91W. Mr Ower did not refer to any authority for his submission on that point and I reject this ground.

Ground 2

1. Ground 2 was, and I do not think I am being unfair to Mr Ower, refined in oral submissions to assert that the error made by the Authority was evident from its reference to it being satisfied that “exceptional circumstances” existed to consider the new information referred to by the Authority, that is, the letter from the Department or Border Force to the Vietnamese Embassy.  It was said in submissions that the use of this phrase indicated that the Authority had considered that the only “gateway” for the consideration of new information was section 473DD.

2. Mr Ower submitted that the Authority’s apparent limitation of the pathways to the consideration of new information was wrong and that in addition section 473CB, which provides for the Secretary to refer material to the Authority, required the consideration of any new material thereby referred. Also section 473DC was a second or perhaps third “gateway”. It was said that the Authority, as I have indicated, wrongly restricted itself to section 473DD as a “gateway” for the consideration of new information and that had it correctly considered section 473DC and perhaps 473CB as “gateways” for the consideration of new information, it would necessarily have had to consider the exercise of the discretion referred to in subsection 473DC(3).

3. It was said that the use of the tell-tale phrase “exceptional circumstances” indicated that only 473DD was considered by the Authority and therefore a court can be satisfied that the discretion in subsection 473DC(3) was not considered. Leaving aside the issues thrown up by the High Court’s decision in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 in relation to that argument, Ms Hooper relied on the High Court decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16.

4. I accept Ms Hooper’s submissions that section 473DD is the only “gateway” for the consideration of new information in Part 7AA and in the case of new information given other than by the referred applicant only subsection 473DD(a) needs to be satisfied, that is, “exceptional circumstances”.  I do not accept that the use of the phrase indicates error by the Authority or indeed a failure to consider the exercise of a supposed discretion under 473DC.  That being the case there is no evidence one way or another about whether the Authority considered the exercise of the discretion, and the argument at that point must fall foul of the High Court decision in BVD17.

5. Further, even if there was an error of the kind asserted by Mr Ower, I am not satisfied that any such error was material.  The applicants were invited to make submissions about the letter to the Vietnamese Embassy by the Department or Border Force in the letter of 22 November 2017.  It was not suggested that anything further could have been said and the applicants in my view have not been deprived of the possibility of a successful outcome, or rather, if the onus rests on the applicant, the applicants have not satisfied me that they have been deprived of the possibility of a successful outcome by any such error.  Therefore, ground 2 is not made out and the application is dismissed. 

6. In this application the Minister was successful and the applicants do not oppose an order for costs.  Ms Hooper, appearing for the Minister, has suggested that the costs were out of the ordinary though she frankly said that she was not able to say exactly how they were out of the ordinary other than that ground 1 raised issues of concern to the Minister and she implied extra work was required.

7. It may be a reflection of Ms Hooper’s competence but it appeared to me that the way she delivered her arguments and submissions were done in a straightforward and convincing way without unnecessary complexity.  That may be because competent counsel has refined confusion to a point of clarity.  That is all possible but there is nothing before me in the procedural history of the matter to suggest that the matter is in any way out of the ordinary and I am not persuaded that I ought to do anything other than order costs in accordance with the schedule.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 11 June 2020