CGL17 v Minister for Immigration

[2018] FCCA 1825

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGL17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1825

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether it was legally unreasonable for the Authority to not invite the applicant to provide new information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473DC, pt.7AA

Cases cited:

DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12

Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32

Applicant: CGL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1634 of 2017

Judgment of: Judge Smith

Hearing date: 15 June 2018

Date of Last Submission: 15 June 2018

Delivered at: Sydney

Delivered on: 15 June 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Stamford Law Firm

Counsel for the First Respondent: Ms R Graycar

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The applicant is granted leave to file and rely on the amended application dated 23 March 2018.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1634 of 2017

CGL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of the decision of the Immigration Assessment Authority made on 20 April 2017.  That decision was to affirm the decision of a delegate of the Minister not to grant the applicant a protection visa.  Although the applicant relies upon an amended application and the ground in which I will come to briefly in support of the application, he concedes at the hearing that this Court is bound by the decision of the Full Court of the Federal Court in DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 and, in particular, by the reason of the Court therein [70] through to [72].

2. For that reason, the applicant accepts that the only possible outcome in this Court is for the application to be dismissed.  Even though there was no substantive argument about the matter, as the matter apparently will be taken on appeal, I need to say something very briefly to give context to that concession and to explain why I accept the concession and will make the order given. 

3. The applicant is a citizen of Iraq who arrived in Australia on 7 July 2013.  After being granted permission by the Minister, he applied for a protection visa on 14 September 2016.  His claims in support of that application essentially arose out of threats that he had received consequent upon his role as an electoral officer in Iraq. 

4. A delegate of the Minister made a decision on 8 February 2017 in which she accepted that the applicant held such a position, but essentially found implausible the detail of the applicant’s claims to have received threats amounting to death threats, and for that reason, found that the applicant was not owed protection. 

5. The matter being, for reasons which it is not necessary to explain, a fast-track reviewable decision was referred to the Authority who reviewed it under pt.7AA of the Migration Act 1958 (Cth). The applicant made a submission that the Authority did not take any steps to elicit any further information from the applicant as it clearly had the power to do in certain circumstances under s.473DC of the Act.

6. The Authority made its decision on 20 April 2017.  Unlike the delegate, it accepted in essence all of the applicant’s claims, but effectively found that in spite of those, there was no real chance of the applicant suffering harm upon return to Iraq because of the length of time since the applicant had left Iraq and various other circumstances. The applicant relies upon the difference between the findings made by the Authority and those by the delegate. 

7. The applicant’s ground in the amended application is that the decision of the Authority was legally unreasonable because the Authority failed to consider whether or not to exercise s.473DC of the Act with respect to new information invited to be put forward by the applicant regarding the basis on which the Authority proposed to decide the review, so far as that basis was different from the basis from the delegate’s decision. Underlying that ground was reliance upon the decisions of the Full Court in Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 and Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32 which concerned decisions by the Authority dealing with a new issue, namely, relocation which had not been dealt with by the delegate before the Authority.

8. In DGZ16, the Full Court, in particular at [70] through to [72], found that those cases were distinguishable in circumstances where the only issue arose from differences in findings between the Authority’s decision and the delegate’s decision. It was not, as explained by the Full Court, a circumstance where the new issue required further information which could only have come from the applicant, such as is the case where relocation is an issue.

9. This case clearly falls within the principles explained in DGZ16 and for that reason, I accept that the concession made by the applicant today is properly made.  That decision being one in a Court higher in the judicial hierarchy than this Court, I am bound to apply it and therefore I accept the further concession that the only outcome in this case, the matters being not distinguishable, is that the application must be dismissed.

Conclusion

1. For those reasons I will order that the application be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       9 July 2018