BCD17 v Minister for Immigration

[2019] FCCA 3235

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCD17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3235

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant a Temporary Protection visa – whether Authority made jurisdiction error as of the issuing of an invalid certificate purportedly under s.473GB of the Act – whether the Authority acted outside jurisdiction by reviewing a decision the applicant claimed was a nullity – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 438(2)(a), 473GB, 476

Cases cited:

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Applicant: BCD17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 755 of 2017

Judgment of: Judge Manousaridis

Hearing date: 2 March 2018

Date of Last Submission: 25 October 2019

Delivered at: Sydney

Delivered on: 13 November 2019

REPRESENTATION

Counsel for the Applicant: Mr S Lawrence

Solicitors for the Applicant: Michaela Byers Solicitor

Counsel for the First Respondent: Mr H Bevan

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 755 of 2017

BCD17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This application for remedies under s.476 of the Migration Act 1958 (Cth) raises two questions. The first is whether the second respondent (Authority) had jurisdiction to review what the applicant contends was a purported decision by a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (subclass 785) visa (TP visa).[1] The second question is whether the Authority fell into jurisdictional error because of what the applicant claimed was the issuing purportedly under s.473GB of an invalid certificate.[2]

   [1] Ground 5 of the Further x2 Amended Application

   [2] Ground 4 of the Further x2 Amended Application

2. At the hearing before me it was accepted by counsel of the parties that the outcome of the first issue would depend, at least to a substantial degree, on the outcome of a special case stated before the High Court in the matter of Plaintiff M174/2016 v Minister for Immigration and Border Protection.[3] After I reserved my decision, it became apparent that the second question might also turn on an appeal to the High Court from the orders of the Full Federal Court in BVD17 v Minister for Immigration and Border Protection.[4] The High Court handed its decision in Plaintiff M174 on 18 April 2018,[5] and its decision in BVD17 v Minister for Immigration and Border Protection on 9 October 2019.[6]

   [3] [2018] HCA 16

   [4] [2018] FCAFC 114

   [5] [2018] HCA 16

   [6] [2019] HCA 34

3. The matter was relisted before me on 25 October 2019. I asked the parties whether they proposed to make any submissions in the light of the High Court’s judgments in Plaintiff M174 and BVD17. The parties informed me they did not wish to make any further submissions.

Background

1. The applicant is a national of Sri Lanka, of Sinhalese ethnicity, and is a Catholic. At the invitation of a delegate of the Minister, on 6 July 2016 the applicant applied for a TP visa. There is no issue that the applicant is a “fast track applicant” as that expression is defined in s.5(1) of the Act.

2. In his application for a TP visa the applicant claimed he feared persecution because he had participated in a protest organised by the Fishery Society in a manner that brought the applicant to the adverse attention of the authorities, and because he departed Sri Lanka illegally.

3. The applicant was interviewed by the delegate on 9 December 2016. The applicant there claimed he also feared of harm because on 10 February 2014 information was mistakenly released on the website of the Department of Immigration and Border Protection (Department) which unintentionally enabled access to personal information about people, which included the applicant, who were in immigration detention on 31 January 2014 (data breach). The applicant claimed that he feared that, because of the data breach, Sri Lankan authorities may have accessed his personal information.

4. It is accepted that the Department retained external consultants, KPMG, to investigate the data breach, KPMG prepared a report for the Department, an abridged version of the KPMG report has been available on the Department’s website since May 2014, but the applicant has been provided with neither the abridged or non-abridged versions of the KPMG report. It necessarily follows that the delegate did not provide or otherwise disclose to the applicant the existence or the contents of the KPMG report.

5. On 4 January 2017 the delegate refused to grant to the applicant a TP visa and the matter was referred to the Authority. The Authority affirmed that decision on 3 March 2017.

Grounds of application

1. The applicant relies on two grounds of application, these being grounds 4 and 5 stated in a document titled “(Draft) Further x2 Amended Application”.

Ground 4

1. Ground 4 claims the Authority fell into jurisdictional error as a consequence of the issuing of an invalid certificate purportedly under s.473GB of the Act. It is unnecessary to set out the particulars in support of that claim because counsel for the applicant accepted that the applicant is bound to fail on this ground, given the Full Federal Court’s judgment in Minister for Immigration and Border Protection v BBS16.[7] Given counsel indicated that this may be a point that may be taken on appeal, I have taken counsel to have formally submitted that the Full Federal Court’s decision is incorrect.

   [7] [2017] FCAFC 176

2. I should, however, refer to the judgment of the plurality in BVD17 v Minister for Immigration and Border Protection.[8] The question in that case was whether the giving of a notification under s.473GB(2)(a) triggers an obligation of procedural fairness, equivalent to the obligation to accord procedural fairness that is triggered on the giving of a notification under s.438(2)(a) of the Act. The “short answer” given by the plurality, is that “procedural fairness does not oblige the Authority to disclose the fact of notification under s.473GB(2)(a) to a referred applicant in a review under Pt 7AA” of the Act.[9] The plurality referred to the Full Federal Court’s decision in BBS16 with apparent approval (footnote omitted):[10]

   Consistent with the earlier conclusion of the Full Court in BBS16, the entirety of the content of the Authority's obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s 473GB(3). Section 473DA(1) leaves no room for an additional obligation of disclosure to arise in the manner recognised in SZMTA.

   [8] [2019] HCA 34

   [9] [2019] HCA 34, [2]

   [10] [2019] HCA 34, [35]

3. Given the applicant’s acceptance that BBS16 has the consequence that the applicant cannot succeed on ground 4, this ground fails.

Ground 5

1. Ground 5 claims the Authority “acted outside of jurisdiction by determining the matter in circumstances where the delegate’s decision was a nullity”. The particulars to the ground contain four matters on which the applicant relies for claiming the delegate’s decision was a nullity. This ground must be considered in the light of the judgments in Plaintiff M174. In that case the question was whether a review to the Authority was available only if the code of procedure set out in Part 2, Div 3, subdivision AB of the Act is complied with. All justices of the High Court answered that question in the negative. The plurality held that “a fast track reviewable decision triggering the operation of the Part and forming the subject of the Authority’s review is a decision made in fact to refuse a grant protection visa to a fast track applicant, regardless of whether or not that decision is legally effective”.[11]

   [11] Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16, at [52] (emphasis added)

2. Thus, whether the delegate’s decision in the case before me is a nullity, as claimed by ground 5, is not relevant to whether the Authority had jurisdiction to review the delegate’s decision. Ground 5, therefore, also fails.

Conclusion and disposition

1. The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, or order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the application.

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

Associate: 

Date:  13 November 2019