BAT16 v Minister for Immigration
[2017] FCCA 1135
•29 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAT16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1135 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority (Authority) – denial of natural justice – whether the Authority erred by failing to give to a referred applicant any material that was before the Minister – whether the Authority erred by failing to given the referred applicant a hearing or interview – no procedural error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5AA, 5H(2), 13, 14, 36, 46A, 359A, 375A, 424A, 438, 473BB, 473CA, 473CC, 473DA, 473DB, 473DC, 473DE, 473GA, 473GB, 501, pt.5, pt.7, div.3 of pt.7AA Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), s.3, items 8 and 60 of sch.1 |
| Cases cited: BBS16 v Minister for Immigration & Border Protection (2017) 316 FLR 431; [2017] FCCA 4 BVM16 v Minister for Immigration & Border Protection [2016] FCCA 3183 DBA16 v Minister for Immigration & Border Protection [2017] FCCA 320 Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Plaintiff M96A/2016 v Commonwealth (2017) 91 ALJR 579; [2017] HCA 16 |
| Applicant: | BAT16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1098 of 2016 |
| Judgment of: | Judge Smith |
| Hearing dates: | 16 March & 11 May 2017 |
| Date of Last Submission: | 11 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Mr J. Pinder, Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1098 of 2016
| BAT16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA) made on the morning of 30 March 2016. The IAA affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant claims that he was denied procedural fairness by the IAA. The scope of the obligation to afford procedural fairness depends upon the context in which the relevant action occurs and, more particularly, the statutory context. In this case, the decision of the IAA was made under s.473CC of the Migration Act 1958 (Cth) (Act). In order to determine the scope of the IAA’s obligation to afford procedural fairness and whether that obligation was complied with, it is necessary to address two matters: first, whether the IAA was the appropriate decision maker; and secondly, if it was the appropriate decision maker, the statutory provisions that regulate the exercise of power by the IAA.
When the applicant arrived in Australia by boat on 17 October 2012, he was classified as an “offshore entry person”, as defined by s.5 of the Act as it stood at that time. That is because he entered Australia at an excised offshore place (being Christmas Island) after the excision time for that offshore place (2:00pm on 8 September 2001) and became an unlawful non‑citizen (within the meaning in s.14, read with s.13 of the Act) because of that entry.
A critical consequence of that classification was that, unless the Minister determined otherwise, the applicant could not make a valid application for any visa: s.46A of the Act. The process surrounding that consequence and the Minister’s consideration of whether to allow visa applications to be made, were considered by the High Court in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41. The Court held in that case, that the process in aid of the Minister’s determination carried with it, the obligation to afford procedural fairness.
On 1 June 2013, the Act was amended so that the definition of “offshore entry person” was repealed and, in its place, s.5AA was inserted, introducing and defining the term “unauthorised maritime arrival”: Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) (Amendment Act), s.3, sch.1, item 8. These amendments applied to the applicant: sch.1, item 60.
A person is an “unauthorised maritime arrival” if, like the applicant, he or she entered Australia by sea at an “excised offshore place”[1], was an “unlawful non-citizen”[2], and was not an “excluded maritime arrival”[3]: see Plaintiff M96A/2016 v Commonwealth (2017) 91 ALJR 579; [2017] HCA 16 at [9].
[1] Within the meaning in s.5(1) of the Act, which includes Christmas Island.
[2] Within the meaning in s.14, read with s.13 of the Act.
[3] Within the meaning of s.5AA(3) of the Act.
In December 2014, significant changes were made to the Act by operation of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (MMPLA Act). Of particular importance to the applicant was sch.4 of that Act which introduced what is called the “Fast track assessment process”.
This process applies to people who are “fast track applicants”. That term is defined by s.5(1) to mean:
(a)a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
(b)a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).
…
On 22 May 2015, the Minister gave the applicant written notice that s.46A(1) of the Act did not apply to a visa application lodged by him and the applicant made a valid application for a protection visa on 30 June 2015. For those reasons, he met the description of a “fast track applicant”.
The procedural effect of the applicant’s status as a “fast track applicant” occurred once the delegate made a decision to refuse to grant the applicant a visa. That decision was made on 2 March 2016.
The following outline of the relevant provisions is taken from the Minister’s submissions (with some adaptions and comments) which I note is relevantly identical to the summary of the relevant provisions in DBA16 v Minister for Immigration & Border Protection [2017] FCCA 320.
22.The Fast Track Assessment Process (FTAP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTAP is to provide an efficient and cost-effective means of processing the protection visa applications of those who arrived in Australia as unauthorised maritime arrivals (UMAs) on or after 13 August 2012 and before 1 January 2014.
23.A person who is subject to the FTAP is a “fast track applicant”—a concept defined in subsection 5(1). …
As noted already, the applicant was such an applicant.
24.A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”: subsection 5(1). …
There is no evidence to suggest that the applicant is an “excluded fast track review applicant” and it is unnecessary to examine that term in any detail.
25.Subject to certain exceptions … a “fast track decision” is defined in subsection 5(1) as a decision to refuse to grant a protection visa to a fast track applicant.
The exceptions include decisions to refuse to grant a visa because the applicant fails the character test in s.501 of the Act or relying on ss.5H(2) (which deals with crimes and other serious matters), 36(1B) or (C) (which concern security risks), or sub-ss.36(2C)(a) or (b) of the Act (which deal with both crimes, other serious matters and security risks). As will be seen, the delegate’s decision was not based on any of those matters.
26.Part 7AA of the Act establishes a comprehensive scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants.
27.Division 8 of Part 7AA (sections 473JA–473JF) establishes the IAA, the body conducting reviews of fast track reviewable decisions.
28.Division 2 of Part 7AA (sections 473CA–473CC) sets out the procedure for referring reviewable decisions to the IAA.
29.Under section 473CA, the Minister must refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after the decision is made. A fast track reviewable decision is defined in section 473BB as, relevantly, a fast track decision in relation to a fast track reviewable applicant.
30.Once the Minister has referred a fast track reviewable decision to the IAA, section 473CB requires the Secretary of the first respondent's department (the Secretary) to give to the IAA certain material in respect of each decision at the same time as, or as soon as reasonably practicable after, such referral, namely:
(a) a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;
(b) material provided by the “referred applicant” (defined in section 473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under section 473CA) to the decision-maker 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 IAA) to be relevant to the review; and
(d) the applicant’s contact details.
31.Subsection 473CC(1) requires the IAA to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the IAA may either affirm the decision or remit it to the Minister for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (Cth).
32.Division 3 of Part 7AA (sections 473DA–473DF) deals with the manner in which reviews are to be conducted by the IAA.
33.Subsection 473DA(1) provides that Division 3 of Part 7AA, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the [IAA]”. …[t]his provision is couched in broader terms than subsections 357A(1) and 422B(1) and operates to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the IAA: CDR16 v Minister for Immigration and Border Protection [2016] FCCA 2759 at [34] (Judge Driver); AFK16 v Minister for Immigration and Border Protection [2016] FCCA 1826 at [12] (Judge Cameron).
34.Subsection 473DA(2) provides that, “[t]o avoid doubt, nothing in … Part [7AA] requires the [IAA] to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65”.
For the purposes of pt.7AA a “referred applicant” is an application for a protection visa in respect of whom a fast track reviewable decision is referred under s.473CA of the Act[4]. As will be seen, the applicant was a “referred applicant”.
The review by the IAA is to be conducted by considering the material provided to it under s.473CB of the Act, without accepting or requesting “new information” and without interviewing the applicant IAA[5].
Although it must not accept or request “new information” the IAA can, but has no duty to, get “new information”: s.473DC(1) of the Act. “New information” is defined by s.473DC(1) to mean any documents or information that:
(i) were not before the Minister when the Minister made the decision under s 65; and
(ii) the Authority considers may be relevant.
[4] Section 473BB of the Act.
[5] Section 473DB(1) of the Act.
…
36.However, new information can only be considered by the IAA if the requirements of section 473DD are satisfied. Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless:
(a) the IAA is satisfied that there are exceptional circumstances to justify considering that information; and
(b) the referred applicant satisfies the IAA that, in relation to any new information given, or proposed to be given, to the IAA by him or her, 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.
The second of the conditions in s.473DD of the Act imposes an onus on the referred applicant to satisfy the IAA of each of two matters. It appears at least arguable that it is implicit in this requirement that a referred applicant has the right to be heard on the question whether the IAA should consider “new information” that he or she has given, or proposes to give, to the IAA.
37.Subsection 473DE(1) imposes certain disclosure obligations on the IAA with respect to this new information [that it has considered or is to be considered by it, and the new information “would be the reason, or a part of the reason, for affirming the fast track reviewable decision”].
It may be noted that, while this provision seems to have been modelled on ss.359A and 424A of the Act, there are a number of significant differences. One is that, whereas those provisions refer to information that the Tribunal considers “would be the reason or part of the reason, for affirming the decision…”[6], sub-s.473DE(1)(a)(ii) of the Act does not turn on what the IAA considers.
38.Division 5 of Part 7AA (sections 473FA–473FC) contains provisions relating to the exercise of powers and functions by, relevantly, the IAA. It suffices only to note subsection 473FA(1), which provides that the IAA, in carrying out its functions under the Act, is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”. …
(Emphasis in original)
[6] See Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 at [24]; [2009] HCA 31.
On the same day as the delegate’s decision, the matter was referred to the IAA in accordance with s.473CA of the Act. That, together with the reasons for delegate’s decision, meant that the applicant became a “referred applicant” and his application for a protection visa fell to be considered in accordance with the provisions of pt.7AA of the Act.
For those reasons, the IAA was the appropriate decision maker and the remaining issue is to be decided by reference to the provisions in pt.7AA of the Act.
Before turning to the decision of the IAA, it is necessary to briefly outline the applicant’s claims in support of his visa application and the reasons for the delegate’s decision.
The applicant’s claims
The applicant is a citizen of Iran. He claimed that he faced persecution or significant harm for reason of his Shia faith, Arab race, political opinion and membership of a particular social group, Ahwazi Arab activists. The applicant claimed that Shias were not allowed to pray at Friday prayers during festivals and that Arabs were discriminated against by the majority Persians. On one occasion the applicant claimed that he was stabbed in the arm with broken glass and beaten by more senior soldiers on account of his race. He claimed that he attended a number of demonstrations in support of Arab rights. At one such demonstration, the applicant claimed he was hit by a police car and seriously injured. At other demonstrations he was arrested, detained and tortured. The applicant said that his home had been raided and continued to be raided once he had left Iran. Ultimately, his entire family left Iran for Dubai.
The delegate’s decision
The delegate interviewed the applicant and sent him a number of letters inviting him to address various concerns held by the delegate.
The delegate found that the applicant was not a credible witness and found that some elements of his evidence were exaggerated, omitted or fabricated in the belief that it would enhance the applicant’s claims.
The delegate accepted that the applicant was both an Arab and a Shia Muslim; however, he did not accept that the applicant had suffered any serious discrimination for those reasons. He accepted that the applicant was a low level supporter of a political group. The delegate did not accept that the applicant had been injured at a demonstration as claimed, had played any significant role in any protest or had been arrested and detained. The delegate found that there was no real risk that the applicant would face serious or significant harm for any of the reasons claimed by him.
The delegate also considered, but rejected, the possibility that the applicant might be harmed on return to Iran as a failed asylum seeker.
For those reasons, the delegate was not satisfied that the applicant satisfied the criteria for the grant of a protection visa.
The delegate’s decision was not based on ss.5H(2), 36(1B) or (C), or sub-ss.36(2C)(a) or (b) of the Act and so was a “fast track decision” within the meaning of s.5(1) of the Act. As the applicant was a “fast track review applicant”, the delegate’s decision was also a “fast track reviewable decision”[7].
[7] Section 473BB of the Act.
Review by the IAA
After the matter was referred to the IAA, the Secretary sent the IAA a number of documents including a statement of the delegate’s reasons for decision. It is not possible to identify precisely what other documents were sent by the Secretary. It is clear that those documents included the material provided by the applicant to the delegate, as well as a document entitled “Notification regarding the disclosure of certain information covered by section 473GB of the Migration Act 1958”. I will return to that document in due course.
On 7 March 2016, the IAA wrote to the applicant indicating that the matter had been referred to it and setting out certain information about the review to be conducted by the IAA. There was no other correspondence or other contact between the applicant and the IAA until the IAA notified the applicant of its decision by letter dated 30 March 2016.
The IAA treated the claims based on ethnicity and political opinion as related. It rejected the applicant’s claims about his involvement in politics, including political demonstrations, as well as the consequences of that involvement in light of inconsistencies in the applicant’s evidence and concluded that there was no credible evidence that the applicant or his family had any political profile that might give rise to the risk of harm to the applicant on return to Iran.
The IAA accepted that the applicant was a Shia Muslim and that Arabic Shia were not permitted to celebrate Eid in accordance with the Arabic calendar; however, it considered that that restriction would not amount to persecution or significant harm.
The IAA also accepted that the applicant was an Arab and that he was assaulted while doing military service and that the assault had a racial element. However, it was not satisfied that it was indicative of wider racial persecution and, in any event, found that there was no real chance that the applicant would be subjected to similar attacks in the future.
The IAA accepted that there was discrimination in employment for Arabs in Iran but found that the applicant had not been discriminated against in this way. As such, it could not be considered serious harm amounting to persecution or significant harm and there was no basis in the evidence to suggest that that would change. The IAA found that discrimination in respect of dress and the celebration of Eid did not amount to persecution or significant harm.
The IAA, like the delegate before it, also considered, but rejected the possibility that the applicant might be harmed for reason of being a failed asylum seeker.
For those reasons, the IAA was not satisfied that the applicant met the requirements of the definition of a refugee in s.5H(1) of the Act and so did not satisfy the criterion in sub-s.36(2)(a). Similarly, it was not satisfied that the applicant met the complementary protection criterion in sub-s.36(2)(aa) of the Act and so affirmed the decision of the delegate.
Consideration
The grounds in the application are that “there was a breach of natural justice” and “there was not a fair hearing”. The grounds were not particularised and the applicant did not file written submissions to explain them. At the hearing, the applicant explained that his complaint was that Immigration did not believe him and that he had documents to prove what he said. The applicant wanted to tender documents that concerned the situation in Iran that might affect him on return there. That tender was rejected because, as I explained to the applicant, they were not relevant to the Court’s task.
The Minister addressed the grounds on the basis that the complaint was that there should have been a hearing but there was not. I take the reference to “hearing” to be to an interview, or some other direct contact between the applicant and the IAA, during which the applicant has an opportunity to give evidence and present arguments. Such a hearing is not necessarily required in order to afford procedural fairness. It may be sufficient, for example, to give an opportunity to present arguments and give evidence in writing. In any event, as the Minister submits, div.3 of pt.7AA is, together with ss.473GA and 473GB of the Act, an exhaustive statement of the natural justice hearing rule in relation to reviews by the IAA[8]. That means that the applicant must rely on some breach of the provisions in that Division or ss.473GA and 473GB of the Act.
[8] Section 473DA(1) of the Act.
There are two difficulties that then face the applicant: first, that the review must be conducted “without interviewing the referred applicant”: sub-s.473DB(1)(b); and secondly, that the IAA is not required to give the applicant any material that was before the Minister: s.473DA(2) of the Act. While there is a limited obligation to give particulars of “new information” to an applicant[9], there is no evidence that the IAA had any new information within the meaning of s.473DC(1) of the Act. In those circumstances, subject to what follows, I can see no breach of the natural justice hearing rule.
[9] Section 473DE of the Act.
That result may seem harsh; however there is no free-standing right to a second-tier merits review. The process of review provided for by pt.7AA of the Act appears to admit of very little input by a referred applicant such as the applicant in these proceedings. That might have some impact on judicial review proceedings taken in respect of the delegate’s decision; however, this Court does not have jurisdiction to engage in such a review and I need express no opinion about that.
The potential qualification mentioned at [32] above arises out of the notification to the IAA referring to s.473GB of the Act. I briefly referred to this notice at [22] above.
Section 473GB of the Act provides:
(1)This section applies to a document or information if:
(a)the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a)must notify the Authority in writing that this section applies in relation to the document or information; and
(b)may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a)may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b)may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4)If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5)The Minister may issue a written certificate for the purposes of subsection (1).
There are similar provisions in each of pt.5 (s.375A) and pt.7 (s.438) of the Act. The provision in pt.5 of the Act was considered by the Full Court of the Federal Court of Australia in Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 (Singh). The provision in pt.7 of the Act was considered by the Federal Court (Beach J) in MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081 (MZAFZ). In both cases it was held that procedural fairness required that the existence of the certificate be revealed to the applicant.
There are many differences between those provisions and s.473GB. However, it is not necessary to examine those matters. Those provisions and the decisions in Singh and MZAFZ have been distinguished in two decisions of this Court: BVM16 v Minister for Immigration & Border Protection [2016] FCCA 3183 at [23] – [27]; and BBS16 v Minister for Immigration & Border Protection (2017) 316 FLR 431; [2017] FCCA 4 at [77] – [80]. I agree with the reasons in those decisions but will examine the issues in a slightly different way.
The certificate in this case was addressed to the Senior Reviewer, Immigration Assessment Authority (IAA). Leaving aside the heading, the certificate stated:
I notify the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in the documents titled CLD2016/765145 OPE052 DRAFT IMAPS Identity Assessment Form and ADD2015/1520543 OPE052_[name]_NSW Document Examination Unit Assessment of Non-Original Identity Documents contained in PDF Portfolio D-1-PRID 1165580748 – [name] – CID68316262135.
In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:
(a)the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it is a Departmental working document.
The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.
This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.
(Emphasis added)
The certificate was signed by a delegate and dated 2 March 2016. There are two matters to consider in light of the certificate: first, the documents referred to in it; and secondly, the certificate itself.
It is not easy to identify the documents; however, I infer from the fact that the certificate was issued that they were documents that were given by the Secretary to the IAA and, for that reason, that they were documents that were before the delegate when he made his decision. Section 473DA(2) of the Act makes plain that, regardless of the fact that the IAA was able to disclose the documents to the applicant, it was not obliged to. The certificate itself is possibly a different matter.
Given the date of the document and its addressee, I find that it was not a document that was before the delegate when the Minister made the decision not to grant the applicant a protection visa. As such, it was not affected by the general provision in s.473DA(2) of the Act: that is, the IAA is not required to give the applicant any material that was before the Minister.
That finding also means that the certificate could be “new information”[10]. If it was “new information” there is a possibility that s.473DE of the Act might apply to it and so require the IAA to give the applicant particulars of the information in the certificate.
[10] See sub-s.473DC(1)(a) of the Act.
Whether it is “new information” or not depends on whether the IAA considered that it may be relevant[11]. That possibility raises the question of what the IAA must think the information might be relevant to. The context of pt.7AA as a process of review suggests that it must be “relevant to the review”, meaning that it might affect the determination of its satisfaction about whether the criteria for the grant of a protection visa are satisfied.
[11] Sub-section 473DC(1)(b) of the Act.
There is nothing in the evidence before the Court to suggest that the IAA considered that the certificate itself might be relevant in the sense discussed. For that reason, it is not “new information” and s.473DE of the Act does not apply.
Even if I were wrong, and the certificate was “new information” I find that it did not fall within s.473DE of the Act. That is because, on any view of the certificate it does not satisfy the requirement that it “would be the reason, or a part of the reason, for affirming the fast track reviewable decision”: sub-s.473DE(1)(a)(ii) of the Act. There is nothing in the certificate that undermines the applicant’s claims to be owed protection by Australia in the sense required by the criteria for a protection visa: see SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17]; [2007] HCA 26.
Given the restricted nature of the natural justice hearing rule in pt.7AA, there was no denial of procedural fairness in the conduct of the review by the IAA.
No other jurisdictional error is apparent from the decision. The application must be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 29 September 2017
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