BFV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 505
•14 April 2022
FEDERAL COURT OF AUSTRALIA
BFV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 505
Appeal from: BFV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 193 File number: VID 602 of 2021 Judgment of: BEACH J Date of judgment: 14 April 2022 Catchwords: MIGRATION – jurisdictional error – failure of Immigration Assessment Authority to consider material - materiality of error - appeal allowed. Legislation: Migration Act 1958 (Cth) ss 473CB(1)(b), 473DD, 5J(6) Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 22 Date of hearing: 14 April 2022 Counsel for the Appellant: A. Aleksov Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: J. Barrington Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
VID 602 of 2021 BETWEEN: BFV17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Orders 1 and 2 of the orders made by the primary judge below on 22 September 2021 be set aside and in lieu of such orders it be ordered that:
(i)The Immigration Assessment Authority’s determination made on 27 February 2017 be set aside.
(ii)The matter be remitted to that Authority for hearing and determination in accordance with law.
(iii)The first respondent pay the applicant’s costs of the proceeding in the Federal Circuit and Family Court of Australia (Division 2).
3.The first respondent pay the appellant’s costs of this appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(ex-tempore)BEACH J:
The background facts and how the short appeal point arises before me are set out in the decision below. I incorporate by reference the primary judge’s reasons at [1] to [27] detailing such aspects.
Now it is not in dispute before me that the Immigration Assessment Authority made an error in not receiving and taking into account the statutory declaration and Facebook post of the appellant’s partner. The question is rather whether that error was material and so jurisdictional in nature. The Minister says that it was not material. Indeed, that is what the primary judge found. Contrastingly, the appellant contends in a modified ground 1 of his notice of appeal that the error was material.
Let me say something further about the error. The statutory declaration and Facebook post were not provided to the Authority by the Secretary of the Department. The Minister conceded below and before me that this was a breach of s 473CB(1)(b) of the Migration Act 1958 (Cth) to give to the Authority material provided by the referred applicant to the person making the decision before the decision was made.
Further, although the appellant’s representative provided these documents to the Authority after the delegate’s decision, the Authority wrongly treated these documents as “new information” and concluded that s 473DD prohibited it from considering the new information.
These compounding errors were not in doubt, but the Minister says that the errors were not material.
It is said that it was not material because the Authority accepted all of the evidence contained in the statutory declaration and Facebook page. That evidence went to establish that the appellant’s fiancée was a Christian and that she and the appellant were engaged. It is said that this fact was accepted by the Authority, which accepted that the appellant’s “fiancée is a committed Christian”.
Now the appellant submits that the material which was not considered by the Authority established a chronology of dates, being that the fiancée had been a Christian since 2013, and was baptised in July 2014, and that they had been in a relationship since 2014. And the appellant says that these dates might have explained the appellant’s conversion to Christianity. In other words, the timing of the events showed that the appellant might have converted to Christianity for his partner, and not solely for the purpose of bolstering his protection claims.
But the Minister says that this argument should be rejected for two reasons.
First, the appellant did not make this claim. The Minister says that if it was true that the appellant had converted to Christianity in order to foster or maintain a relationship with his partner, he did not say so at any stage throughout the visa application process. It is said that this is significant in a context where the timing of the appellant’s conversion to Christianity had been raised by the delegate as an issue. Therefore the Minister says that the starting date of the relationship had no significance.
Second, the Minister says that the connection between the appellant’s apparent interest in Christianity and his partner was adverted to in the materials. At the interview with the delegate, the appellant explained that he had some knowledge of Christianity earlier, and when he went to church he found it quite calming and “his partner is quite a strict Christian”. He said he wanted to “be like his girlfriend”. In submissions provided after that interview, the representative explained “[w]hen he got to Australia he met his fiancée, who encouraged him to explore Christianity further”.
It is said that in light of the fact that the appellant did make claims concerning the impact or influence of his partner on his conversion to Christianity, and that he did not include a claim that he became Christian to become as it were “in sync” or further his relationship with her, there is no realistic possibility that the Authority would or should have considered the point.
Therefore, the Minister says that the dates had no additional significance. The Minister says that there is no realistic possibility that had the Authority had the benefit of those dates, it would have considered some argument not made and which did not clearly emerge, and decide the review differently.
But in my view the appellant is correct in saying that but for the error, the Authority might have found that the appellant was not making up his Christian beliefs for migration purposes. And since such an outcome was realistically possible, it was also possible that a different approach may have been taken to s 5J(6).
The development of the appellant’s Christian practices appears to have coincided with the development of his relationship with his girlfriend. And the excluded material established dates for their relationship which were otherwise not before the Authority. So, the dates, combined with the substance of the excluded information, gave rise to a potential and realistic argument in the appellant’s favour.
Now it would seem that the appellant did not expressly make such an argument. But undoubtedly, the Authority could have realistically picked up what was on one view self-evident. In that respect I differ with the Minister on that aspect.
Now the Authority appears to have formed the view that the appellant’s Christian beliefs were not genuine. In this regard, the Authority made adverse findings at [43] and [44]. But if the Authority had the excluded material before it, it may well have found that the appellant’s Christian views and practices in Australia developed in response to the relationship with his partner, rather than any migration considerations. So, the adverse findings in the first sentence of [43] and the first sentence of [44] may not have been made, as well as related findings.
I agree with the appellant that there is a realistic chance that the appellant’s engagement with Christianity might have been explained by non-migration considerations, and thus could well have been accepted as being genuine.
Further, all of this may have had ramifications for the operation of s 5J(6). Such excluded material may have led to the necessary satisfaction contemplated by that sub-section.
Further, although the Minister has drawn my attention to the submission made by the appellant’s representative on 5 December 2016, and in particular what was said at [24] and [25], the quality of the excluded material and its corroborative weight are such that as I say there was a realistic possibility that the Authority would have taken a different view to the genuineness of the appellant’s interest in Christianity and his non-migration purpose.
Further, given the Authority’s attention to this question, it is not unlikely that it would have taken a different position in [31], [43] and [44] of its reasons had it taken this material into account.
For these reasons, the primary judge ought to have found that the Authority fell into error which being material was jurisdictional. He was in error for not so finding. Accordingly the appeal must be allowed.
I will order as follows:
(1)The appeal be allowed.
(2)Orders 1 and 2 of the orders made by the primary judge on 22 September 2021 be set aside, and in lieu thereof it be ordered that:
(i)the Authority’s decision made on 27 February 2017 be set aside;
(ii)the matter be remitted to the Authority for hearing and determination in accordance with law; and
(iii)the Minister pay the costs below.
(3)The Minister pay the appellant’s costs of this appeal.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate:
Dated: 4 May 2022
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