BCJ16 v Minister for Immigration & Anor

[2017] FCCA 2943

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2943

Catchwords:
MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Sri Lanka – Tamil ethnicity – whether grounds of review particularised – whether bias – whether wrong issue or wrong question – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Part 7AA, Div.3, ss.5, 36, 46A, 473DA, 473GA, 473GB

Cases cited:

AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826
AQN15 v Minister for Immigration & Anor [2016] FCCA 58
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant: BCJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 202 of 2016

Judgment of: Judge Antoni Lucev

Hearing date: 15 November 2017

Date of Last Submission: 15 November 2017

Delivered at: Perth

Delivered on: 30 November 2017

REPRESENTATION

For the Applicant: In person (with the assistance of an interpreter)

Counsel for the First Respondent: Mr T Reilly

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 202 of 2016

BCJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review (“Judicial Review Application”) under the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) made on 6 April 2016 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) not to grant the applicant a Safe Haven Enterprise visa (“Safe Haven Visa”).

2. The IAA Decision is at Court Book (“CB”) 242-265.

Factual and procedural background

1. The factual and procedural background is as follows:

   a)the applicant is a citizen of Sri Lanka who was born on 23 April 1995: CB 1, 15 and 19;

   b)the applicant arrived in Australia as an unauthorised maritime arrival on 17 August 2012. The applicant was interviewed by officers of the Department on 20 August 2012 and 5 September 2012: CB 1-28 and 187;

   c)on 14 May 2013 and on subsequent occasions, the Minister intervened to lift the bar under s.46A of the Migration Act, and the applicant was granted a number of Bridging E visas and a Temporary Humanitarian Stay Subclass 449 visa: CB 188;

   d)on 24 October 2013 the applicant lodged an application for a Subclass 866 Protection visa, but the application was deemed not to be valid: CB 29-101 and 102-103;

   e)on 17 August 2015 the applicant was invited to lodge an application for a Temporary Protection Subclass 785 visa or the Safe Haven Visa, as the Minister had exercised his power under s.46A(2) of the Migration Act to allow the applicant to make a valid application for a visa of one of those classes: CB 104-110;

   f)on 21 September 2015 the applicant made an application for the Safe Haven Visa. The application was supported by a statutory declaration made by the applicant on 18 September 2015 and translations of various Sri Lankan documents: CB 11-150, 151-159 and 160-174;

   g)by letter dated 12 November 2015 the applicant was invited by the Delegate to attend an interview on 27 November 2015 to discuss the Safe Haven Visa application and his claims that he is a person in respect of whom Australia has protection obligations. The applicant attended an interview with the Delegate on that date: CB 180-182 and 191;

   h)on 26 February 2016 the Delegate’s Decision was that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or (aa) of the Migration Act, and refused to grant the applicant a Safe Haven Visa: CB 223 at [138]-[141]. The applicant was advised of the Delegate’s Decision by letter dated 26 February 2016: CB 183-185 and 187;

   i)the Delegate also determined that the applicant was not an excluded fast track review applicant, and as the Delegate’s Decision is a fast track reviewable decision, the application was automatically referred to the IAA for review: CB 183-184 and 223-225;

   j)by letter dated 29 February 2016 the IAA advised the applicant that the Delegate’s Decision to refuse to grant him a Safe Haven Visa had been referred to the IAA for review: CB 228-236;

   k)on 10 March 2016 the IAA wrote to the Department to advise that at the end of his interview with the Delegate, the applicant had presented a note written by the village officer in support of his claim, and that the note was considered by the Delegate and referred to in the Delegate’s Decision (it appears at CB 200 at [48]), but that the document was missing or incomplete. The Department was requested to re-send the document to the IAA. On 11 March 2016 the Department advised the IAA that the Delegate had been unable to locate the requested document: CB 237-239; and

   l)on 6 April 2016 the IAA Decision affirmed the Delegate’s Decision not to grant the applicant the Safe Haven Visa. The applicant was advised of the Delegate’s Decision by a letter from the IAA dated 6 April 2016: CB 242.

Judicial Review Application

1. The Judicial Review Application was made on 9 May 2016 and contains the following grounds:

   1. Jurisdictional error.

   2. Bias based on conscious or unconscious prejudice by ignoring relevant material.

   3. Identifying a wrong issue on a wrong question.

2. The Judicial Review Application was supported by an affidavit affirmed by the applicant on 8 May 2016 which annexed a copy of the IAA Decision.

Proceedings in this Court

1. On 8 June 2016 a Registrar of the Court made orders programming the matter to a hearing on 20 July 2017, including that by 11 July 2016 the applicant file and serve any amended application giving complete particulars of each ground of the review relied upon and any affidavit containing additional evidence upon which he proposed to rely. Orders were also made for the filing of submissions by the applicant 42 days before hearing and by the Minister 21 days before hearing. The matter was subsequently re-listed administratively on two occasions, ultimately being listed for final hearing on 15 November 2017.

2. The applicant did not file or serve any amended application, or any affidavit evidence. Nor did the applicant file written submissions.

3. Although the applicant had failed to file any written submissions the applicant was permitted to make oral submissions at the hearing of the matter before the Court. He did so at some length, but essentially reiterated the factual circumstances giving rise to his Safe Haven Visa application. When specifically asked what complaint he had with respect to the IAA Decision the applicant was unable to articulate any complaint which might seemingly give rise to jurisdictional error in the IAA Decision, and failed to make any submissions dealing with the grounds of the Judicial Review Application or relating them to the IAA Decision. That failure is perhaps understandable when regard is had to the fact that the applicant told the Court that he had not read the IAA Decision because he had become extremely upset upon reading the covering letter from the IAA indicating that it had affirmed the Delegate’s Decision not to grant the Safe Haven Visa.

4. The Minister filed written submissions in accordance with the orders made by the Registrar, and made oral submissions consistent with those written submissions, to the effect that the grounds of the Judicial Review Application:

   a)were unparticularised;

   b)were not made out in any event; and

   c)did not establish jurisdictional error in the IAA Decision.

Ground 1 – jurisdictional error

1. The applicant’s first ground of application merely asserts jurisdictional error on the part of the IAA, but provides no particulars of how that jurisdictional error is said to arise.

2. The IAA Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the IAA, will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. Jurisdictional error might also arise if there is a denial of such procedural fairness as is required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; AFK16 v Minister for Immigration & Border Protection [2016] FCCA 1826 at [12] per Judge Cameron.

3. The applicant was given the opportunity to file an amended application giving particulars of each ground of review relied upon but did not do so.

4. A bare assertion of jurisdictional error on the part of an administrative decision-maker (here the IAA) cannot lead to a finding of jurisdictional error. Further, the failure to particularise a ground of application is itself sufficient to warrant dismissal of such a ground: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard. The failure to particularise ground 1 is, therefore, of itself sufficient reason to conclude that ground 1 is not made out.

5. The Court notes that, in any event, the IAA Decision:

   a)set out the nature of the visa application being considered: CB 244 at [1]-[3];

   b)set out in detail the applicant’s claims relevant to whether or not Australia had protection obligations to the applicant: CB 244-246 at [6];

   c)made factual findings with respect to each of the claims made by the applicant: CB 246-250 at [7]-[28];

   d)set out in detail its assessment of whether or not the applicant was a refugee, having regard to whether or not he had a well-founded fear of persecution if returned to Sri Lanka: CB 250-258 at [29]-[61];

   e)undertook a complementary protection assessment by reference to whether or not there was a real risk that the applicant would suffer significant harm if removed from Australia to Sri Lanka: CB 258-260 at [62]-[73]; and

   f)set out at CB 260-265 the relevant law to which it had had regard in making the IAA Decision.

6. On the face of it there is nothing illogical or irrational in the IAA Decision reasoning, and there is an evident and intelligible justification for the conclusions in the IAA Decision: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ.

7. Ground 1 does not establish any jurisdictional error in the IAA Decision.

Ground 2 – bias based on conscious or unconscious prejudice by ignoring relevant material

1. As with ground 1 the applicant has also not provided any particulars of Ground 2. As with ground 1, and for the same reasons, the lack of particularisation means that for that reason alone, ground 2 cannot be made out.

2. In any event, the applicant has not filed any affidavit evidence addressing the claim of bias. An allegation of bias is a serious matter and must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J (and see also at [127] per Kirby J) (“Jia Legeng”). The applicant has not distinctly or clearly proven that the IAA was either consciously or unconsciously biased because it ignored relevant material. No ignored relevant material was identified by the applicant, let alone how or why it might have caused the IAA to be biased in any way. As Counsel for the Minister submitted with some force and good reason, the matters complained about by the applicant in his oral submissions were all matters which were in fact considered, and not ignored, by the IAA. Further, there is no evidence that:

   a)the IAA had a pre-existing state of mind disabling it from undertaking, or rendering it unwilling to undertake, any proper assessment of relevant issues: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or

   b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the IAA, might reasonably apprehend that the IAA may not have brought an impartial mind to the assessment of relevant issues: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.

3. The Court also observes that the careful and detailed manner in which the IAA dealt with the applicant’s claims weighs against any suggestion of bias in the IAA Decision or any suggestion that it ignored relevant material.

4. Ground 2 does not establish any jurisdictional error in the IAA Decision.

Ground 3 – identifying a wrong issue on a wrong question

1. Ground 3 contains no particulars which identify any wrong issue or identify any wrong question, and, as with grounds 1 and 2, for that reason alone this ground of application is not made out.

2. There is nothing in the IAA Decision in any event which indicates that the IAA identified any wrong issue, or asked any wrong question; or, as it is put in ground 3, “a wrong issue on a wrong question”. The applicant’s oral submissions at hearing took the matter no further. There was therefore no identification by the applicant of any wrong issue or wrong question which was asked by the IAA, or considered by the IAA in the IAA Decision.

3. Ground 3 does not establish any jurisdictional error in the IAA Decision.

Conclusion and orders

1. The Court has concluded that the applicant has failed to establish jurisdictional error in the IAA Decision. It follows that there must be an order dismissing the Judicial Review Application.

2. The Court will hear the parties as to costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 30 November 2017