BRC17 v Minister for Immigration
[2019] FCCA 218
•28 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRC17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 218 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – consideration of a preliminary question whether the jurisdiction of the Authority was enlivened – question answered in the affirmative. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.47, 65, 66, 67, 368, 473BB, 473CA, 473CC |
| Cases cited: ACS18 & Ors v Minister for Immigration & Anor [2018] FCCA 1420 AEW18 v Minister for Home Affairs & Anor [2018] FCCA 1842 Brar v Minister for Immigration & Anor [2018] FCCA 2272 DQX16 v Minister for Immigration & Anor [2018] FCCA 1915 He v Minister for Immigration [2017] FCAFC 206 Minister for Immigration v SZVCH (2016) 244 FCR 366 Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 Romero v Minister for Home Affairs & Anor [2018] FCCA 1116 Singh v Minister for Immigration [2015] FCA 220 |
| Applicant: | BRC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1185 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 November 2018, 4 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu of Hodges Legal |
| Counsel for the Respondents: | Mr C Lenehan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The answer to the preliminary question raised, pursuant to rule 17.02 of the Federal Circuit Court Rules 2001 (Cth), is “yes”.
Costs of the determination of the preliminary question are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1185 of 2017
| BRC17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 March 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant two referred applicants protection visas. The present applicant was the principal applicant before the Authority. The second visa applicant is not an applicant before the Court.
The following statement of background facts is derived from initial written submissions filed on behalf of the applicant on 31 October 2018.
The applicant is a male, born in Jaffna District, in the Northern province of Sri Lanka on 30 November 1978, and is a citizen of Sri Lanka of Tamil ethnicity.[1]
[1] Court Book (CB) 1
The applicant arrived in Australia at Christmas Island without a valid visa by boat on 28 September 2012 and applied for a SHEV[2] on 15 October 2015.[3]
[2] Safe Haven Enterprise Visa
[3] CB 141-175
The delegate refused to grant the visa on 30 August 2016.[4]
[4] CB 238
The delegate’s decision was reviewed by the Authority. The Authority affirmed the delegate’s decision and refused to grant the applicant a visa 22 March 2017.[5]
[5] CB 326
The applicant’s claims
The applicant’s claims include the following:[6]
a)if returned to Sri Lanka, the applicant would be a member of a particular social group, namely returned failed asylum seekers, as he successfully claimed asylum and was mandated as a refugee by the UNHCR[7] while residing in Malaysia;
b)the applicant, between 2002 and 2006, was forced to transport LTTE[8] members in his vehicle. Two drivers who were known to work for the LTTE were shot dead by the authorities;
c)in July 2006, the applicant was almost shot by an unidentifiable man, while messengering a letter for an LTTE member. One week later, he was threatened with a gun and shot at by another man. After this, in late July 2006, members of the EPDP[9] came to the applicant’s home with guns in search of him;
d)the applicant’s father went missing on 5 August 2006. The applicant suspects that his father was taken in retaliation for the applicant’s support of the LTTE and because the EPDP had some issues with the applicant’s father;
e)after leaving Sri Lanka and in early 2013, the Sri Lankan authorities questioned the applicant’s mother about the applicant; and
f)while living in Malaysia as an asylum seeker, he was repeatedly arrested and extorted for bribes. This led to his decision to seek asylum in Australia.
[6] CB 268-269 and 329
[7] United Nations High Commissioner for Refugees
[8] Liberation Tigers of Tamil Eelam
[9] Eelam People’s Democratic Party
The applicant claims to fear harm or persecution from the Sri Lankan authorities, for the following reasons:
a)he is of Tamil ethnicity;
b)he is suspected of being a supporter of the LTTE;
c)he departed Sri Lanka illegally; and
d)he applied for asylum in Australia.
The decision of the Authority
The Authority considered the applicant’s claims and made findings which included the following:
a)at [25],[10] the Authority found that although failed asylum seekers such as the applicant would be subjected to questioning upon return to Sri Lanka, this questioning does not amount to serious harm;
b)at [20],[11] the Authority was not satisfied that the three incidents of July 2006 are related and are evidence of a real threat faced by the applicant due to his links with the LTTE;
c)at [22],[12] the Authority was not satisfied that the applicant’s father was abducted by the EPDP or that his disappearance was connected with the applicant’s involvement with the LTTE. The Authority also concluded that it was unlikely any issues the applicant’s father had with the EPDP in 2006 would create a real risk of harm for the applicant; and
d)at [24],[13] the Authority was not satisfied that the applicant departed Sri Lanka illegally, as it found that there was insufficient evidence of the applicant being targeted by, or otherwise of interest to, the Sri Lankan authorities.
[10] CB 333
[11] CB 332
[12] CB 332-333
[13] CB 333
At [26]-[37],[14] the Authority was not satisfied that there is a real chance that the applicant would face harm due to his ethnicity, religion or language, because the situation in Sri Lanka for Tamil males from the north has improved in recent years and because the applicant claims to speak Sinhala, the language of the Sinhalese majority.
[14] CB 333-337
The present proceedings
These proceedings began with a show cause application filed on 19 April 2017. The matter came before me for hearing on 7 November 2018. At that time I granted the applicant leave to file and rely upon a further amended application handed up in court.
It became apparent during the course of argument that there was a preliminary question in this case, namely whether the jurisdiction of the Authority had been enlivened by the making and referral of a decision of a delegate of the Minister. In light of this I made the following order:
Pursuant to rule 17.02 of the Federal Circuit Court Rules 2001 (Cth), the following question is to be decided separately and before any other question in the proceedings:
Whether the Immigration Assessment Authority’s jurisdiction was enlivened by a decision of a delegate.
I called for the filing of further evidence and submissions on that issue.
The hearing on the preliminary issue was conducted on 4 February 2019. In addition to the court book filed on 29 June 2017, I received two affidavits filed on behalf of the Minister:
a)the affidavit of Ernest Zanatta made on 10 December 2018, including the annexures to that affidavit;
b)the affidavit of Mia Donald made on 31 October 2018, including the annexures to that affidavit.
Consideration
Of concern in this matter is that there are a number of indicia of an unfinalised decision by the Minister’s delegate. Those indicia are:
a)the record of the purported decision by the delegate reproduced at CB 241-263 bears on each page a prominent “draft” watermark;
b)although there were two visa applicants before the Minister (and the Authority) only the principal applicant is identified as an applicant in the “applicant details” section,[15] although there are references to the secondary applicant later in the decision;
c)the decision maker is unidentified except by position number;
d)a notification letter was sent to the principal applicant on 30 August 2016[16] and a different delegate notified the secondary applicant of the purported decision on 14 October 2016;[17] and
e)although the decision was purportedly made on 30 August 2016, it was not referred to the Authority until 28 October 2016.[18]
[15] CB 241
[16] CB 238-240
[17] CB 270
[18] that is three months later (CB 275)
The above indicia raise a serious question whether the delegate ever finalised the purported decision and thus whether there was any referral to the Authority enlivening its jurisdiction. However, notwithstanding the unfortunate state of the reasons for the decision of the delegate, I am persuaded by counsel for the Minister’s submissions that the jurisdiction of the Authority was enlivened in the circumstances of this case.
The relevant legislative regime
The statute
Pursuant to s.47(1) of the Migration Act 1958 (Cth) (Migration Act), the Minister must consider a valid application for a visa. Section 65(1) complements s.47.[19] It provides (in effect) that after considering a valid application, the Minister must decide to either grant or refuse to grant the visa.
[19] Minister for Immigration v SZVCH (2016) 244 FCR 366 at [35]
Section 66 sets out notification requirements in relation to the decision made under s.65. In particular, s.66 imposes a duty on the Minister to notify the applicant of the decision[20] and, in the event that the decision is to refuse to grant the visa, to give the applicant written reasons as to why the Minister considers that any criterion for the grant of the visa is not met.[21]
[20] section 66(1)
[21] see s.66(2)(c) (and see eg Singh v Minister for Immigration [2015] FCA 220 at [53(c)]; Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 at [7]
There is a difference between the Minister’s decision under s.65 and the notification of that decision under s.66. Section 66(1) presupposes that a decision under s.65 has already been made when the Minister comes to prepare the notification of the decision (“[w]hen the Minister grants or refuses to grant a visa …”[22]). As the Full Federal Court recently observed, in relation to the analogue in s.368:[23]
… there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act. The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. …
(citations omitted)
[22] section 66(1)
[23] see He v Minister for Immigration [2017] FCAFC 206 at [79] per Siopis, Kerr and Rangiah JJ
Section 67 deals with when the Minister is taken to have made a decision for the purpose of s.65. Section 67 provides as follows:
(1) The following decisions are taken to be made by the Minister causing a record to be made of the decision:
(a) a decision to grant a visa;
(b) a decision to refuse to grant a visa.
(2) The record must state the day and time of its making.
(3) The decision is taken to have been made on the day and at the time the record is made.
(4) The Minister has no power to vary or revoke the decision after the day and time the record is made.
(5) Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).
Section 67, then, provides certainty and clarity as to when the Minister becomes functus officio in relation to the exercise of his decision-making power in s.65. As stated in the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth), it provides that a decision by the Minister “becomes final on the day and at the time a record of the decision is made”.[24]
[24] page 7
Turning to relevant provisions in Part 7AA of the Migration Act, pursuant to s.473CA, the Minister must refer a “fast track reviewable decision” (as defined in s.473BB) to the Authority “as soon as reasonably practicable after the decision is made”,[25] and s.473CC(1) provides that the Authority must “review a fast track reviewable decision referred to the Authority under section 473CA”. It is not in issue that the decision in this case (if validly made) was a “fast track reviewable decision” within the meaning of s.473BB. Accordingly, so long as the decision was validly “made”, the Authority’s jurisdiction has been enlivened.
[25] Minister’s emphasis retained
What is a “record” for the purpose of s.67?
In DQX16 v Minister for Immigration & Anor,[26] Judge Smith found that the “record” of the decision contemplated by s.67 could be a computer record, separate from the document setting out the decision itself and sent to the applicant under s.66. Judge Street reached the same conclusion in AEW18 v Minister for Home Affairs & Anor.[27] The conclusion mandated by that approach is that a decision under s.65(1) will be taken to be made (by reason of s.67(1) and s.67(3)) when the Minister’s Department makes an internal computer record of the decision.
[26] [2018] FCCA 1915
[27] [2018] FCCA 1842 at [26]-[27]
Judicial comity requires that I should follow the approach taken in DQX16 and AEW18 unless it is clearly wrong. It is not clearly wrong. It is consistent with the structure of the statutory regime set out above, in that it correctly identifies that a decision under s.65 is separate to the obligation to notify reasons for that decision under s.66.
The Minister notes that in Romero v Minister for Home Affairs & Anor,[28] Judge Manousaridis held at [5]:
The effect of s 67(1) of the Act… is to require a decision made by the Minister not to grant a visa to be recorded in a document; and that the requirement under s 66(1) of the Act that the Minister notify the applicant of the Minister’s decision not to grant a visa necessarily implies that the notification is to be effected by the Minister giving the applicant the document recording the Minister’s decision.
[28] [2018] FCCA 1116
His Honour referred to this passage with approval in his later decision of Brar v Minister for Immigration & Anor,[29] and adopted the same approach in the earlier decision of ACS18 & Ors v Minister for Immigration & Anor.[30]
[29] [2018] FCCA 2272 at [3]
[30] [2018] FCCA 1420 at [14]
At face value, this passage might suggest that a “record” for the purpose of s.67 must be the document issued under s.66 recording the Minister’s reasons for granting, or refusing to grant, the applicant a visa.
However, each of Romero, Brar and ACS18 relevantly concerned a different issue, when visa applicants received notice of a decision made, not when that decision was in fact made (i.e., the question settled by s.67). Moreover, the notion that a “record” for the purpose of s.67 constitutes the written reasons sent to an applicant under s.66 ignores the fact that a decision under s.65 is separate to the obligation to notify reasons for that decision under s.66. The distinction between the concept of notification of decision, reasons for the decision and the making of a record was recognised by this Court in AEW18 at [26].
The evidence demonstrates that a decision was validly made for the purpose of s.67 of the Migration Act
Here, the evidence demonstrates that on 30 August 2016 at 11.47am, a decision of the delegate refusing the applicant’s application was recorded in the Minister’s Department’s ICSE.[31] Adopting the approach taken in DQX16 and AEW18, the delegate therefore made a decision on 30 August 2016 at 11.47am.[32] This is sufficient to enliven the jurisdiction of the Authority.
[31] Integrated Client Services Environment. See affidavit of Mr Zanatta, 10 December 2018 at [8]
[32] and see s.67(3)
Further, even if “record” for the purpose of s.67 requires the recording of reasons in a document (which document is subsequently sent to the applicant), it is not in dispute that the applicant has been sent a copy of the reasons for decision of the delegate. This is sufficient to enliven the jurisdiction of the Authority although, for the reasons set out above, this is not the correct approach to s.67 of the Migration Act.
The applicant’s arguments do not raise any issues of jurisdiction
The applicant appears to raise three arguments in support of the proposition that the Authority’s jurisdiction was not enlivened by a decision validly made by the delegate (the applicant puts the proposition slightly differently, stating that there is “insufficient evidence to conclude that the delegate’s decision was a valid decision”).
First, the applicant appears to claim,[33] relying upon DQX16 at [26] that in order to “make” a decision, a delegate must record the decision in ICSE after having prepared his/her written reasons which are sent to the applicant. This proposition is contrary to the plain terms of s.66(1) (“when the Minister grants or refuses to grant a visa …”). In any event, DQX16 at [26], like Mr Zanatta’s affidavit at [4], does not purport to set out requirements that must be met to make a decision for the purpose of s.65 of the Migration Act. Rather, the paragraphs simply describe the system which delegates of the Minister employ when making a decision under s.65 of the Migration Act. There is no basis in the Migration Act, and nothing in DQX16, that would convert a system customarily adopted by delegates of the Minister into a precondition to the valid making of a decision under s.65. In particular, while the Minister has no power to vary or revoke a decision to refuse to grant a visa under s.65 once that decision has been made,[34] the Minister is nonetheless able to issue his “evidence of [his] mental process”[35] after having made the decision.
[33] applicant’s additional submissions at [3]
[34] see s.67(4)
[35] cf. He at [79]
Secondly, the applicant appears to claim at [4] of his additional submissions that there is an inconsistency between the affidavit of Ms Donald and Mr Zanatta’s affidavit, in that Ms Donald’s affidavit shows the written reasons which the Minister’s Department directed the Authority to review were created at 12.57 pm on 30 August 2016,[36] whereas Mr Zanatta’s affidavit shows the delegate generated a notification of refusal letter at 11.57am on 30 August 2016.[37]
[36] see page 65, annexure MD-3 to Ms Donald’s affidavit
[37] see annexure EZ-1 to Mr Zanatta’s affidavit
However, it is not clear how any inconsistency in the timing of these documents would bear upon any question of the Authority having jurisdiction to review the decision ultimately made.
Thirdly, and finally, the applicant places reliance upon the fact there was a draft watermark on the written reasons sent to the Authority and[38] to the applicant.[39] The applicant claims that the draft watermark is not a typographical error[40] and that it could be argued the delegate deliberately placed the draft watermark on the decision and so the slip rule was inapplicable and the Minister’s Department could not remove the draft watermark;[41] moreover s.67(4) prevented the removal of the watermark.[42] However, none of this is to the point. The applicant has pointed to nothing in the Migration Act that leads to the conclusion that the presence of a draft watermark would mean that the decision was not “made” for the purpose of s.67 (and so s.65). As set out above, whichever approach to s.67(1) is adopted, a record has been made of the decision and so the decision has been made for the purpose of s.65, enlivening the Authority’s jurisdiction.
[38] under s.66 of the Migration Act
[39] at [22] of the applicant’s additional submissions
[40] at [9] of the applicant’s additional submissions
[41] at [10]-[20] of the applicant’s additional submissions
[42] the applicant’s submissions at [21]
Conclusion
As the jurisdiction of the Authority was enlivened by the referral to it of the delegate’s decision, it is necessary to consider the grounds of review advanced by the applicant in relation to that decision.
I will reserve costs of the determination of the preliminary question.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 28 February 2019
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