BTV18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2021] FCCA 851

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTV18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 851

File number:

PEG 190 of 2018

Judgment of:

JUDGE KENDALL

Date of judgment:

29 April 2021

Catchwords:

MIGRATION – decision of the Immigration Assessment Authority – where the applicant was an “excluded fast track review applicant” – where the IAA had no jurisdiction – where the referral to the IAA was erroneous – relief available – IAA’s decision quashed – referral to the IAA quashed – declarations made.   

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr 1.06, 44.05

Migration Act 1958 (Cth), pts 5, 7, 7AA, ss 5, 46A, 66, 473BB, 473CA, 473CC, 474, 476

Number of paragraphs:

90

Date of hearing:

19 April 2021

Place:

Perth

Applicant:

Appeared in person

Counsel for the First Respondent:

Mr G T Johnson

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

PEG 190 of 2018

BETWEEN:

BTV18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	29 APRIL 2021

THE COURT DECLARES THAT:

1.The first respondent’s delegate formed the opinion that the applicant was an “excluded fast track review applicant”.

2.The first respondent’s delegate had no power to refer the decision dated 24 February 2017 to the Immigration Assessment Authority pursuant to s 473CA of the Migration Act 1958 (Cth).

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision of the Immigration Assessment Authority dated 28 April 2017.

2.A writ of certiorari issue quashing the referral dated 1 March 2017 made by the delegate of the first respondent pursuant to s 473CA of the Migration Act 1958 (Cth).

REASONS FOR JUDGMENT

JUDGE KENDALL

BACKGROUND AND RELEVANT ISSUES ON REVIEW

1. The applicant is a citizen of Iran now living in Australia (Court Book (“CB”) 1-36).

2. Prior to arriving in Australia, the applicant applied for “asylum protection” in the Republic of Cyprus (CB 1). That application was refused by the Republic of Cyprus on 12 March 2007.

3. On 21 January 2013, the applicant arrived in Australia as an unauthorised maritime arrival (CB 158). On 3 February 2016, the applicant was advised that the first respondent (the “Minister”) had lifted the bar under s 46A(2) of the Migration Act 1958 (Cth) (the “Act”). The applicant was invited to apply for a protection visa (CB 38-42).

4. On 3 August 2016, the applicant applied for a Temporary Protection (Subclass 785) visa (the “visa”) (CB 49-91).

5. The applicant attended an interview with a Ministerial delegate on 22 November 2016 (CB 103).

6. On 24 February 2017, the delegate refused to grant the applicant the visa (CB 156-170). The delegate found that the applicant was not a credible witness and rejected each of his claims for protection. Relevantly, the delegate found that the applicant had previously applied for “asylum protection” in the Republic of Cyprus. This issue is discussed further below.

7. On 1 March 2017, the applicant’s case was referred to the Immigration Assessment Authority (the “IAA”) pursuant to s 473CA of the Act (CB 171-183). As discussed further below, the central question before this Court is whether that referral should have occurred and whether the IAA had jurisdiction to review the matter once it was referred to it by the Minister.

8. On 28 April 2017, the IAA affirmed the decision not to grant the applicant the visa (CB 190-204).

9. The applicant filed an application for judicial review in this Court on 9 April 2018. He seeks judicial review of the IAA’s decision dated 28 April 2017. That application was 311 days outside of the statutory time limit. Accordingly, the applicant requires an extension of time within which to file his substantive application.

10. This matter was listed for a hearing before this Court on 11 March 2020. The applicant appeared on that date without legal representation. He was assisted by a Farsi interpreter.

11. At the start of that hearing, the Minister’s legal representative requested an adjournment. The Minister advised the Court that there were some concerns that the applicant might be an “excluded fast track review applicant” because he had previously applied for, and been denied, protection status by the Republic of Cyprus. The Court was advised that if the applicant was an excluded fast track review applicant then, arguably, the IAA had no jurisdiction to review the delegate’s decision.

12. The Court granted an adjournment to allow the Minister time to seek a legal opinion from counsel about whether the matter ought to proceed.

13. On 6 October 2020, the Minister indicated that it wished to proceed with the application. The Court made orders, by consent, granting leave for the filing of further submissions and programming the matter for hearing.

14. The matter returned for a hearing on 16 April 2021. The applicant appeared without legal representation. He was assisted by a Farsi interpreter. Mr Kaplan of Counsel appeared for the Minister.

15. At that hearing, Mr Kaplan advised that the Minister did not oppose an extension of time being granted (even though the applicant’s substantive application had been filed 311 days late). Noting the complexities of the legal arguments advanced by Counsel, the Court agreed that an order extending time was appropriate and did so.

16. It is noted that r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) requires that, where an applicant requires an extension of time, they must file an affidavit that explains the delay and demonstrates why it is necessary, in the interests of the administration of justice, for the Court to grant an extension. The applicant did not do so in this case. To the extent necessary, the Court confirms that it waives compliance with r 44.05(2)(c) of the Rules pursuant to r 1.05 of the Rules.

17. It is noted that the applicant was given two opportunities to file any supporting materials. Not surprisingly, given that he was not represented and given the complexity of the matters raised, he did not do so.

18. The materials before the Court thus include the application for judicial review filed on 9 April 2018, a Court Book numbering 204 pages (marked as Exhibit 1), correspondence confirming service of the respective documents (marked as Exhibit 2) and two sets of written submissions filed by the Minister: one dated 19 February 2020 and one dated 27 October 2020.

19. The applicant confirmed that he had received these documents and had copies with him in Court.

20. Noting that the applicant was not represented, the Court explained what this Court could and could not do on review. The Court outlined what was meant by the terms “merits review” and “jurisdictional error” and noted that, unlike most matters that come before this Court, this matter raised a rather complex “threshold question” about whether the IAA had jurisdiction to do what it had done in relation to this matter. The applicant made a number of submissions about matters in the delegate’s decision and the IAA’s decision and, more generally, about why he fears returning to Iran.

21. The Court wishes to thanks the interpreter for her assistance with this matter. The issues canvassed in this matter were legally complex. The interpreter’s translation skills (and patience) allowed the applicant to engage with the Court in a way that might otherwise have proven quite difficult.

22. The Court also wishes to note the considerable assistance provided by Mr Kaplan for the Minister. Others would do well to emulate his written and oral advocacy skills.

    THE EXCLUDED FAST TRACK APPLICANT REVIEW ISSUE

23. Normally, in relation to appeals from a decision of the IAA, this Court outlines the IAA’s decision in detail. That is not necessary here. Nor, for the reasons that follow, is it necessary to assess the grounds of review as articulated in the application for judicial review. The assistance he provided the unrepresented applicant epitomises what one expects from a model litigant.

24. As noted above, the Minister identified a threshold issue at the start of the hearing on 11 March 2020. That issue, in simple terms, is: did the IAA have jurisdiction to review the delegate’s decision in light of the fact that the applicant had previously applied for, and been denied, a protection visa in Cyprus? That is, was the applicant an “excluded fast track review applicant” as per s 5(1) of the Act and, if so, did the IAA have the power to do what it did here?

    Relevant Statutory Provisions and Factual Background

25. It is not disputed that the applicant is a “fast track applicant” as that term is defined in s 5(1) of the Act. It also not disputed that the delegate’s decision was a “fast track decision”.

26. Section 473CA of the Act provides:

    473CA Referral of fast track reviewable decisions

    The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

27. Section 473BB of the Act states:

    …

    “fast track reviewable decision” means:

    (a) a fast track decision in relation to a fast track review applicant; or

    (b) a fast track decision determined under section 473BC;

    but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.

    Note: Fast track decisions are decisions (subject to some exceptions) to refuse to grant protection visas to certain applicants, known as fast track applicants. Some specified fast track applicants are known as excluded fast track review applicants; all others are known as fast track review applicants. The highlighted terms are defined in subsection 5(1).

    …

28. The IAA’s jurisdiction is limited to “fast track review applicants” and “fast track reviewable decisions”.

29. A “fast track review applicant” is defined in s 5(1) of the Act as meaning:

    … a fast track applicant who is not an excluded fast track review applicant.

30. “Excluded fast track review applicant” is defined in s 5(1) of the Act. In the context of this application, the following definition is relevant:

    “excluded fast track review applicant” means a fast track applicant:

    (a) who, in the opinion of the Minister:

    …

    (iii) has made a claim for protection in a country other than Australia that was refused by that country; or …

31. Once the Minister refers a “fast track reviewable decision”, certain obligations are imposed on the IAA. Relevantly, s 473CC of the Act provides:

    473CC Review of decision

    (1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

    (2) The Immigration Assessment Authority may:

    (a) affirm the fast track reviewable decision; or

    (b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by the regulation.

32. As noted, there is no dispute that the delegate’s decision is a “fast track decision”. However, whether the applicant is a “fast track review applicant” depends on whether or not he is an “excluded fast track review applicant”. If the applicant here is an “excluded fast track review applicant”, then the IAA exceeded its powers when it purported to review the delegate’s decision. This is the central issue in this case as it appears the applicant was indeed an excluded fast track review applicant and, as such, was denied certain rights to which he was entitled.

    Factual Background and Delegate’s Decision

33. On 17 February 2005, the applicant filed an application for international protection in the Republic of Cyprus (CB 1). The applicant sought recognition as a “refugee” or protection on the basis of a “subsidiary” ground under the “Refugee Law of 2000-2005”.

34. On 12 March 2007, the applicant was advised that the Asylum Service of Cyprus had rejected his protection application (CB 1). The applicant did not appeal that decision.  On 9 July 2007, he was asked to leave the Republic of Cyprus (CB 2).

35. The applicant then arrived in Australia and sought protection here. His visa application was filed in Australia on 3 August 2016.  In that application, the applicant indicated (at question 24) that, on 17 February 2005, he had “[a]pplied for asylum but refused in 2008” by the Republic of Cyprus (CB 64). At question 71, the applicant stated that the reason he wanted to migrate to the Republic of Cyprus was “[s]imilar reasons for coming to Australia, fear of harm in Iran” (CB 73). At question 73, the applicant further indicated that he had been deported from the Republic of Cyprus twice and the “circumstances” were “[r]efugee application denied” (CB 74).

36. In relation to his “travel history”, the applicant explained in his visa application that he had travelled to Cyprus on various occasions “[s]eeking asylum” (CB 129).

37. On the cover page of the delegate’s decision, the applicant is referenced as not being an excluded fast track review applicant as follows:

    Fast track applicant:   Yes ☒ No ☐

    Excluded fast track review applicant:               Yes ☐ No ☒

38. In the delegate’s substantive decision, the delegate references the applicant’s previous asylum application in the Republic of Cyprus as follows (CB 163):

    Cyprus – application for asylum refused

    At interview, the matter of travelling to Cyprus on multiple occasions was discussed in depth. The applicant related that he had been to Cyprus four times, travelling legally to northern [Turkish] Cyprus and then crossing over illegally into southern [Republic of] Cyprus, where he would unlawfully live and work. He lived in southern Cyprus firstly for five years between 2003 and 2008; then deported to Iran. Then again for three years between 2008 and 2011, he returned voluntarily to Iran. Back to Cyprus again for the six months between January and July 2012; he was again deported to Iran. Back to Cyprus again in August 2012; returning voluntarily to Iran within the same month.

    The applicant first arrived in Cyprus in 2003. After having lived and unlawfully worked in Cyprus for two years, on 17 February 2005 the applicant decided to lodge an application for asylum. On 12 March 2007 the Republic of Cyprus Ministry of Interior Asylum Service notified the applicant in writing that his application had been rejected [refused] due to not meeting the specified refugee criteria, and for not meeting the subsidiary protection [complementary protection] requirements as set out in law. The notification also advised the applicant that he could appeal this decision within a period of 20 days. Subsequently, the applicant did not lodge an appeal.

    On 9 July 2007 the Republic of Cyprus Ministry of Interior Migration Department notified the applicant in writing to ‘depart Cyprus at once’. The applicant ignored this notification, continuing to unlawfully reside and work in Cyprus until he was caught and subsequently deported to Iran in 2008.

39. The Court notes that the IAA also accepted that the applicant had previously applied for asylum in the Republic of Cyprus and that his application had been refused in that country (CB 192 at [7]).

    Minister’s Position in Relation to Whether the Applicant is an “Excluded Fast Track Review Applicant”

40. The relevant question here is whether the delegate “formed the opinion” that the applicant was an excluded fast track review applicant. 

41. The Minister submits that there are three ways of interpreting what occurred before the delegate:

    (a)the delegate formed the opinion that the applicant was not an “excluded fast track review applicant”; or

    (b)the delegate formed the opinion that the applicant was an “excluded fast track review applicant”; or

    (c)the delegate formed the opinion that the applicant was not an “excluded fast track review applicant” but that opinion was formed on an erroneous basis.

42. The Minister stresses that if the delegate formed the opinion that the applicant was not an “excluded fast track review applicant”, then the IAA had jurisdiction. Alternatively, it is argued that if the delegate formed the opinion that the applicant was an excluded fast track review applicant or formed the opinion that the applicant was a fast track review applicant on an erroneous basis, while there is technically an error that this Court can address, the grant of relief should nonetheless be withheld because the applicant has received “more than he is entitled to in any event” and will “suffer no practical detriment”.  Hence, it is argued, the application should be dismissed.

    WHAT “OPINION” DID THE DELEGATE FORM?

43. The Minister submits that it can be inferred from the materials before the Court that the delegate formed the opinion that the applicant was not an “excluded fast track review applicant”. The Minister relies on the following to support that contention:

    (a)on the cover page of the delegate’s decision record, the delegate has expressly marked the box which references the applicant as not being an “excluded fast track review applicant”;

    (b)there is no express finding that the applicant is an excluded fast track review applicant in the body of the delegate’s decision; and

    (c)the delegate’s decision itself does not suggest that the delegate formed the opinion that the applicant was an excluded fast track review applicant. While the delegate referred to the previous asylum claim, it did so within the context of the applicant’s travel history – not in relation to the fact that the applicant had applied for protection elsewhere.

44. The Court rejects the Minister’s submissions that the delegate formed the opinion that the applicant was not an “excluded fast track review applicant”. On the evidence before the Court, it is clear that the delegate was of the view that the applicant had applied for asylum in the Republic of Cyprus, that that application had been denied and, on that basis, that the applicant was very much an “excluded fast track review applicant”.

45. The fact that the delegate marked a box on the cover page of its decision referring to the applicant as not being an “excluded fast track review applicant” is of little weight contextually. Further, the fact that the delegate made no express reference to the term “excluded fast track review applicant” in the body of its decision does not support the Minister’s argument that the delegate had formed the opinion that the applicant was not an excluded fast track review applicant.

46. There does not need to be an explicit reference to s 5(1) of the Act or the term “excluded fast track review applicant” for the Minister to be found to have formed the opinion that an applicant has made a claim for protection in a country other than Australia that was refused by that country. An applicant may meet the definition of an “excluded fast track review applicant” on the basis of implicit findings in the delegate’s decision.

47. Closer analysis of the delegate’s decision is thus required.

48. Here, in the body of the delegate’s decision, the delegate says (CB 163):

    The applicant first arrived in Cyprus in 2003. After having lived and unlawfully worked in Cyprus for two years, on 17 February 2005 the applicant decided to lodge an application for asylum. On 12 March 2007 the Republic of Cyprus Ministry of Interior Asylum Service notified the applicant in writing that his application had been rejected [refused] due to not meeting the specified refugee criteria, and for not meeting the subsidiary protection [complementary protection] requirements as set out in law. The notification also advised the applicant that he could appeal this decision within a period of 20 days. Subsequently, the applicant did not lodge an appeal.

    …

1. The delegate continues (emphasis added) (CB 166):

   Discussion

   In the ‘Findings of fact’ section above, based on the applicant’s verbal testimony, I found the applicant’s reasons for leaving Iran relate to not wanting to continue to live in Iran under the current regime; and for reasons of seeking a better life and wanting to work and live in a western country.

   In the ‘Findings of fact’ section above, evidence is provided wherein on 12 March 2007 the Republic of Cyprus Ministry of Interior Asylum Service notified the applicant in writing that his application for Protection had been rejected [refused] due to not meeting the specified refugee criteria, and for not meeting the subsidiary protection [complementary protection] requirements as set out in [Cyprus] law.

   Above, the applicant did not meet the criteria required for a positive finding as outlined in paragraph 36(2)(a) of the Act (refugee criteria).

   I have considered all of the claims of the applicant, both individually and cumulatively. I have considered the relevant country information, specifically in relation to the applicant’s personal circumstances. On balance, I find that the applicant ‘would not warrant international protection’.

2. Clearly, the delegate was aware that the applicant’s claims for protection were refused in another country. The question is: did the delegate form the opinion that the applicant was an excluded fast track review applicant?

3. On the evidence, the Court finds that the delegate implicitly did so. 

4. In written submissions dated 27 October 2021, the Minister submits as follows in relation to the delegate’s references to the protection claims made in Cyprus:

   17. … In assessing the applicant’s credibility, the delegate referred to the applicant’s having travelled between Iran (his home country) and Cyprus on a number of occasions and made an application for asylum there, which was refused: CB 163, 166. However, the focus of those findings was not on any application for refugee status made in Cyprus, but on the applicant’s having left and returned to Iran voluntarily on several occasions and the consequences that that had for his credibility generally. The applicant, of course, had claimed that he feared persecution in Iran on account of his religion (CB 160-162) and that he had been “deported from Cyprus” (CB 161). Neither claim was found to be credible: CB 164. Relying on the inconsistencies in the applicant’s account (including as to his travel to Cyprus), the delegate concluded that the reason for having left Iran was not a fear of persecution, but a desire to “see[k] a better life” and “work and live in a western country”: CB 165, 166.

5. The Court does not accept that the delegate’s “findings” in relation to what occurred in Cyprus do not relate to a finding about the applicant’s refugee application in Cyprus.  The delegate’s reference to the decision made by the Cypriot authorities was clearly a basis upon which the delegate rejected the applicant’s claims. In so doing, the delegate clearly “formed the opinion” that a previous application by the applicant in another country had been rejected. The fact that the delegate specifically compared the phrase “subsidiary protection” with “complementary protection” makes it clear that the delegate was of the opinion that the applicant had made claims for protection that had been refused. The fact that claims in Cyprus had been rejected was a basis upon which the delegate reasoned that the applicant did not meet the protection visa criterion (as it undermined his credibility and because another authority had determined his claims did not warrant international protection).

6. It is evident from the above that the delegate formed the opinion that the applicant had made a claim for protection in a country other than Australia that had been refused by that country. In so doing, the delegate implicitly determined that the applicant was an excluded fast track review applicant. The fact that the delegate may not have appreciated the consequences of this assessment does not alter the fact that the “opinion” was formed for the purposes of the definition in s 5(1).

7. On this basis alone, the Minister had no power to refer the delegate’s decision to the IAA and the IAA had no power to review the delegate’s decision. In conducting the review, the IAA exceeded its jurisdiction.

   WHAT RELIEF CAN AND SHOULD BE GRANTED?

8. The Court has found above that the delegate formed the opinion that the applicant had made claims in another country that had been rejected. The Court is satisfied that the delegate, in these circumstances, implicitly formed the opinion that the applicant was an “excluded fast track review applicant”.

9. In these circumstances, the application should not have been referred to the IAA. The Minister erred in making such a referral. Likewise, the IAA erred in reviewing the decision as it had no jurisdiction to do so.

10. In relation to the question of relief, the Minister submits as follows:

    22. In these proceedings, the only “migration decision” (as defined in s 5(1) of the Act) being challenged by the applicant is the Authority’s decision under s 473CC(2)(a). If the Authority had no jurisdiction to conduct a review under Part 7AA, then its decision would be liable to be quashed. However, it is doubtful that there would be any utility in granting relief to the applicant, as he would otherwise be deprived of a de novo merits review of the delegate’s decision. As no useful result would ensue by the issue of a writ of certiorari directed to the Authority, the Court should withhold relief even if it is persuaded that the delegate formed the requisite opinion.

    23. If the Authority’s decision were quashed on the basis that it had no jurisdiction to review the delegate’s decision under s 65, this Court would have jurisdiction to entertain a challenge to the latter decision in either of the following two circumstances: (a) the applicant does not challenge the Minister’s refusal to refer the s 65 decision to the Authority (such refusal being based on a finding that the applicant is an excluded fast track review applicant), or (b) alternatively, the applicant challenges the refusal to refer (which would essentially be a challenge to the determination that he or she is an excluded fast track review applicant) but fails in this Court. It is only in either instance that this Court would have jurisdiction to review the decision under s 65, as in those circumstances the s 65 decision would not be a “primary decision” as defined in s 476(4)(c) (as it would not be a decision “that has been, or may be” referred for review by the Authority under Part 7AA of the Act)

11. In effect, the Minister’s submission is that no purpose would be served by granting relief as the applicant would be denied a right of merits review. He has, in effect, had the benefit of a review that he should not have had. As such, it is submitted, the Court should withhold relief.

12. The Court asked Mr Kaplan how it can be said that there is no utility in quashing the IAA’s decision if it is still the case that the applicant would, arguably, be entitled to appeal the delegate’s decision to this Court for (an albeit more limited) review. Arguably, if the Court denies relief the applicant would be denied a right of review of the delegate’s decision in this Court.

13. Mr Kaplan agreed that, if relief was granted, a right of review (albeit limited) was still possible. As such, he ultimately conceded, it cannot not be said that there was no utility whatsoever in granting the applicant relief.

14. It is certainly true that the applicant was given an opportunity for merits review that he was not actually entitled to and, as such, “benefited” from the opportunity that review gave him. However, it is not the case that the applicant would be in the same position had the error not occurred. Had the error not occurred, the applicant would have (in accordance with s 66(2)(f) of the Act) been advised that his decision was not reviewable on its merits. He would then have been alerted to the fact that he was entitled to apply to this Court for judicial review.

15. While the Court accepts that the applicant, in effect, “got another chance” before the IAA, the applicant will nonetheless be denied a right to which he is entitled if the Court simply ignores the fact that the IAA should not have done what it did. He may well have another opportunity to have his claims considered by the delegate if he applies (successfully) for judicial review of the delegate’s decision in this Court. By sending this matter to the IAA, rather than advising the applicant that the delegate’s decision could be appealed to this Court, the applicant was denied that right and the benefits that flow from a successful appeal to this Court.

16. The issue which then arises is: what relief can, and should, be granted?

17. The Court and Mr Kaplan agreed that, in light of the above, and in light of the complex nature of the review in question here, the Court could consider making the following declarations and orders:

    THE COURT DECLARES THAT:

    The first respondent’s delegate formed the opinion that the applicant was an “excluded fast track review applicant”.

    The first respondent’s delegate had no power to refer the decision to the Immigration Assessment Authority pursuant to s 473CA of the Migration Act 1958 (Cth).

    THE COURT ORDERS THAT:

    A writ of certiorari issue quashing the decision of the Immigration Assessment Authority.

    A writ of certiorari issue quashing the referral made by the delegate of the first respondent pursuant to s 473CA of the Migration Act 1958 (Cth).

18. These orders are fact specific. 

19. This Court’s jurisdiction is found in s 476 of the Act which provides:

    (1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

    (2) The Federal Circuit Court has no jurisdiction in relation to the following decisions:

    (a)       a primary decision;

    …

    (4)       In this section:

    “primary decision” means a privative clause decision or purported privative clause decision:

    (a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

    (b) that would have been so reviewable if an application for such review had been made within a specified period; or

    (c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

20. The effect of the above is that, in most circumstances, this Court cannot review the delegate’s decision as the delegate’s decision is, in most cases, a primary decision. Accordingly, the Court does not normally have the power to order relief in relation to the delegate’s decision. However, if the delegate’s decision is not a “primary decision”, then the Court will have jurisdiction to conduct a judicial review of that decision.

21. The delegate’s decision is not a “primary decision” if the applicant is an “excluded fast track review applicant”. This is so because the decision is not reviewable under part 5 or part 7 of the Act and should not be referred for review under part 7AA. The only review that an applicant may seek in these circumstances is judicial review in this Court.

22. Here, the only relief the Court can grant in relation to the IAA’s decision is an order to quash the IAA’s decision. Remittal would prove futile as, on the basis of the Court’s findings above, the IAA has no jurisdiction to hear the matter (because the applicant is an excluded fast track review applicant).

23. Simply quashing the IAA’s decision will not, however, assist the applicant. He will still be prevented from seeking review of the delegate’s decision. This is so because, by virtue of the actions taken (i.e., the referral to the IAA), the delegate’s decision remains a “primary decision” (notwithstanding that the IAA’s decision has been quashed).

24. This arises by virtue of the scope of sub-s 476(4) of the Act and the definition of “primary decision”, which provides:

    (4)      In this section:

    “primary decision” means a privative clause decision or purported privative clause decision:

    …

    (c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

25. Even if the Court quashes the IAA’s decision (noting that the Court intends to do so), the fact remains that the applicant’s matter has been referred to the IAA (albeit erroneously). Hence, the delegate’s decision is still, legislatively, a “primary decision”.

26. Accordingly, in order for the applicant to obtain a right of judicial review of the delegate’s decision in this Court (i.e., for the delegate’s decision not to be a primary decision such that the applicant is restored to the position he should have been in had no error been made), the Court must quash the IAA’s decision and the referral made pursuant to s 473CA. The result will be that the delegate’s decision was not reviewed under Part 7AA (as the Court’s decision to quash the IAA’s decision means that that no decision has been made at all) and was not referred to the IAA (as the referral will be quashed).

27. One further issue that needs attention relates to whether this Court has jurisdiction to quash a referral under s 473CA.

28. Section 473CA provides:

    473CA Referral of fast track reviewable decisions

    The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

29. Again, with reference to s 476, the Court has jurisdiction in relation to “migration decisions”. The term “migration decision”, as defined in s 5, means:

    (a) a privative clause decision; or

    (b) a purported privative clause decision; or

    ….

30. The term “decision” is defined in s 474(3) of the Act. It:

    …includes a reference to the following:

    (a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

    (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

    (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

    (d) imposing, or refusing to remove, a condition or restriction;

    (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

    (f) retaining, or refusing to deliver up, an article;

    (g) doing or refusing to do any other act or thing;

    (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

    (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

    (j) a failure or refusal to make a decision.

31. Mr Kaplan submitted that a referral under s 473CA arguably falls under the jurisdiction of this Court as it is “conduct preparatory to the making of a decision” as per s 474(3)(h) of the Act.

32. The referral is a mandatory obligation placed upon the Minister’s delegate. Notwithstanding that the referral is mandatory, it is still a “decision” under the Act. It is conduct preparatory to the making of a decision. Specifically, it is a preparatory step to the making of a decision under s 473CC of the Act.

33. On the basis of the above, the Court is satisfied that it has the jurisdiction to consider, and therefore quash, a referral made on an incorrect basis.

34. In circumstances where the Minister was “of the opinion” that the applicant was an “excluded fast track review applicant”, the delegate’s decision was not a fast track reviewable decision and the delegate’s referral pursuant to s 473CA was erroneous, the Court will order that the referral to the IAA also be quashed.

35. The effect of the above is that the applicant will be restored to, the same position as he would have been had the erroneous referral to and consideration of the matter by the IAA not occurred. The Court will then, arguably, have jurisdiction to consider the delegate’s decision substantively for jurisdictional error at a later date.

36. The Court says “arguably” because the time within which an applicant may seek review of the delegate’s decision is 35 days.  By virtue of the errors that have been made and the actions taken as a result, if the applicant chooses to file an application in this Court for review of the delegate’s decision, that application will be more than four years outside of the statutory time period within which to commence an application in this Court (noting the applicant was advised of the delegate’s decision on 24 February 2017).

37. It is noted that the purported notification of the delegate’s decision appears not to contain the requisite information required by s 66(2)(f) of the Act. The time to appeal to this Court commences from the “the date of the written notice of the decision”. Whether the “written notice” is required to comply with s 66(2)(f) for time to “commence” is something that may need to be explored should the applicant apply for review of the delegate’s decision in this Court.

38. The Court need not express any opinion on this issue. What is critical is that the orders that will be made, and the accompanying declarations, will confirm the applicant’s rights of judicial review.

39. A declaration to the effect that the Minister formed the opinion that the applicant was an excluded fast track review applicant will also be made. This will, in effect, clarify the applicant’s right of review to this Court by confirming his status as an “excluded fast track review applicant”.

40. The Court will also make a further declaration to the effect that the Minister’s delegate has no power to make a referral pursuant to s 473CA of the Act. Again, this clarifies the applicant’s right of review in this Court.

    CONCLUSION

41. The Court has concluded that the IAA acted in excess of its jurisdiction in reviewing the applicant’s application. It had no power to do so in circumstances where the Minister was of the opinion that the applicant had made claims for protection in another country which were refused by that country and was, implicitly, an excluded fast track review applicant. The referral pursuant to s 473CA of the Act should not have been made and it was erroneous for the Minister to make such a referral.

42. Accordingly, the IAA’s decision and the referral pursuant to s 473CA of the Act will be quashed. The Court will also make declarations that:

    (a)the Minister’s delegate formed the opinion that the applicant was an excluded fast track review applicant; and

    (b)the Minister’s delegate had no power to refer the delegate’s decision to the IAA pursuant to s 473CB of the Act.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       29 April 2021