CHA16 v Minister for Immigration - [2017] FCCA 2319

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHA16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2319

Catchwords:
MIGRATION – Judicial review – protection visa – no jurisdictional error.

Legislation:

Migration Act 1958, ss.5, 473BA, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD

ABJ17 v Minister for Immigration (2017) FCCA 1240
Craig v State of South Australia (1995) CLR 163
Minister for Immigration v Yosuf [2001] 206 CLR 323

Applicant:

CHA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 751 of 2016

Judgment of:

Judge Howard

Hearing date:

15 August 2017

Date of Last Submission:

15 August 2017

Delivered at:

Brisbane

Delivered on:

15 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Karp

Solicitors for the Applicant:

Fisher Dore Lawyers

Counsel for the First Respondent:

Mr Wheatley

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

That the application filed 17 August 2016 be dismissed.
That the Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 751 of 2016

CHA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 15 August 2017 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

The applicant in this case arrived in Australia on 29 October 2012 by boat. The applicant, to use the terminology drafted in the legislation, was an “unauthorised maritime arrival.” The applicant was actually born in Iraq. Having arrived on 29 October 2012, it was not until May of 2015 that a delegate of the Minister invited the applicant to apply for a temporary protection visa, and this was pursuant to the fast track assessment process. The fast track assessment process applied to persons who arrived by boat between 13 August 2012 and 1 January 2014. In section 5 of the Migration Act, a fast track applicant is defined.
It was actually on 15 June 2015 that the applicant then lodged an application for a temporary protection visa and stated his occupation as a civil engineer and his religion as a Shia Muslim. To summarise, there were two basic claims for the protection visa articulated by the applicant. The first was that he would be targeted if he returned to Iraq because he had worked previously as a contractor for a company known as the New Technical Company, referred to in the material as NTC. He had worked for that company between January 2006 and August of 2007.
That company apparently had been contracted to or associated with the British Army during the invasion of Iraq. This is all referred to in the court book, which is exhibit 1. In addition, the other claim to which I will refer is a claim by the applicant in relation to the fact that he had been a businessman or professional person interested in establishing a brick factory, which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 2319
Decision Date: 15 August 2017

CaseChat Overview and Summary

This matter came before Judge Howard of the Federal Circuit and Family Court of Australia, seeking judicial review of a decision made by the Minister for Immigration. The applicant, represented by Mr Karp, challenged the Minister's decision, with Ms Wheatley appearing for the Minister. The core of the dispute involved the interpretation and application of various provisions within Part 7AA of the *Migration Act 1958* (Cth), specifically concerning the review process for fast-track reviewable decisions.

The primary legal issue before the Court was whether the Minister had complied with the procedural requirements mandated by sections 473CA and 473CB of the Act when referring the applicant's case to the Immigration Assessment Authority (IAA). This involved determining the scope of the "review material" that the Secretary was obliged to provide to the IAA, and the timing of that provision. The Court was also required to consider the implications of section 473DA, which states that Part 7AA is an exhaustive statement of the natural justice hearing rule in relation to IAA reviews, and the limitations imposed by section 473DB on the IAA's ability to consider new information.

The Court's reasoning focused on the plain text of sections 473CA and 473CB. It was held that section 473CB(1) imposes a mandatory obligation on the Secretary to provide specific categories of material to the IAA, including a statement of findings, reasons, evidence, material provided by the applicant, and any other relevant material in the Secretary's possession. Furthermore, section 473CB(2) mandates that this review material must be provided to the IAA at the same time as, or as soon as reasonably practicable after, the decision is referred. The Court found that the Minister's referral process, as evidenced by the material before it, did not satisfy these requirements, thereby breaching the statutory obligations. The Court noted that while section 473DC allows the IAA to obtain new information in certain circumstances, this does not absolve the Secretary of their initial duty under section 473CB.

The Court found that the Minister had failed to comply with the procedural requirements of the Act. Consequently, the Court ordered that the Minister's decision be set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There were initially two grounds, but the second was deleted. Mr Karp of counsel appeared on behalf of the applicant, and Ms Wheatley of counsel appeared on behalf of the Minister. The case required a detailed consideration of various sections of part 7AA of the Act. The relevant sections state:“473CA Referral of fast track reviewable decisionsThe Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.473CB Material to be provided to Immigration Assessment Authority(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:(a) a statement that:(i) sets out the findings of fact made by the person who made the decision; and(ii) refers to the evidence on which those findings were based; and(iii) gives the reasons for the decision;(b) material provided by the referred applicant to the person making the decision before the decision was made;(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;(d) the following details:(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;(v) if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.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 regulation.473DA Exhaustive statement of natural justice hearing rule(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.473DB Immigration Assessment Authority to review decisions on the papers(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:(a) without accepting or requesting new information; and(b) without interviewing the referred applicant.(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).473DC Getting new information(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:(a) were not before the Minister when the Minister made the decision under section 65; and(b) the Authority considers may be relevant.(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:(a) in writing; or(b) at an interview, whether conducted in person, by telephone or in any other way.473DD Considering new information in exceptional circumstancesFor the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

Ratio Decidendi

Legal Principle Established

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