CKU17 v Minister for Immigration
[2020] FCCA 1766
•3 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKU17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1766 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming decision not to grant applicants a Safe Haven Enterprise visa – whether the Authority has jurisdiction to determine whether any of the applicants is an “excluded fast track review applicant” – assuming the Authority has such jurisdiction whether the Authority considered whether any of the applicants was an “excluded fast track review applicant” – assuming the Authority failed to so consider whether its failure was material to the Authority’s decision – whether on the material before the Authority there was a claim the Authority failed to consider – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), pt.3, sch.1 Migration Act 1958 (Cth), ss.5(1), 5H, 36(2)(a), 36(2)(aa), 473BB, 473CA, 473CC, 476 |
| Cases cited: AZR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2085 SZUTM v Minister for Immigration and Border Protection [2016] FCA 45 |
| First Applicant: | CKU17 |
| Second Applicant: | CKV17 |
| Third Applicant: | CKW17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1749 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 25 March 2020 |
| Date of Last Submission: | 25 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr R Chia (by direct access) |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the First Respondent: | HWL Ebsworth Lawyers |
ORDERS
The application for leave to file a further amended application in the form of the draft annexed to the applicants’ written submissions filed on 11 March 2020 is dismissed.
The application is dismissed.
The first and third applicants pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1749 of 2017
| CKU17 |
First Applicant
| CKV17 |
Second Applicant
| CKW17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants apply for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Safe Haven Enterprise visa (SHEV).
The amended application, as currently filed, contains three grounds. At the hearing before me the applicant, by his counsel, applied for leave to file a further amended application (FAA) in the form of the draft that is annexed to counsel for the applicants’ written submissions. The FAA removes grounds 1 and 2 of the current amended application, and substitutes a new ground 1.
The Minister opposed the Court granting the applicants leave to file the FAA on the ground that ground 1 was not arguable and, for that reason, it would be futile to grant the applicants leave to file the FAA. At my suggestion, counsel for the parties agreed that I would hear submissions both on whether I should grant the applicants leave to file the FAA and, assuming I grant such leave, whether the applicants succeed on the new ground contained in the FAA.
Given the nature of the first ground of the FAA it will be necessary not only to set out the applicants’ claims for protection, but also the circumstances in which the applicants arrived in Australia, and the relevant statutory provisions that govern the Minister’s referral to the Authority of decisions refusing to grant an applicant a SHEV.
Background and claims for protection
The first applicant is a citizen of Sri Lanka, a Hindu, and a Tamil. He was born in the late 1980s in a village (Village) in the Vavuniya district in Sri Lanka. The third applicant is the first applicant’s wife, and is also a citizen of Sri Lanka. The second applicant is the daughter of the first and third applicants.
The first and third applicants left Sri Lanka in July 2010. They first travelled to Malaysia and, from there, to Indonesia where the second applicant was born. The applicants left Indonesia in November 2012 and arrived at Christmas Island on 17 November 2012.[1]
[1] SCB6
On 29 March 2016 the applicants lodged an application for a SHEV. The second and third applicants applied as members of the first applicant’s family unit, although, in August 2016, the third applicant submitted a statement in which she claimed she feared harm in Sri Lanka.
The first applicant stated his claims for protection in a statutory declaration dated 15 March 2016 that formed part of the SHEV.[2] He there claimed as follows:
[2] CB74-79
a)The Village is an area that was formerly controlled by the Liberation Tigers of Tamil Eelam (LTTE). Several of the first applicant’s relatives were members of the LTTE, including a paternal cousin who was a cadre attached to the LTTE pistol gang. The first applicant and his cousin closely resemble each other.
b)At around 17 years of age the first applicant moved to a town (Town) in the Jaffna district to continue with his studies because he had relatives in Jaffna and the school there was better than in his Village. The first applicant resided in the Town until around September 2009, occasionally travelling to the Village to visit his family.
c)During one of his occasional visits to his family in 2006, the first applicant and his friends, after hearing a shooting, attended the scene from where the sound of the shooting had come, and observed that the owner of a large grocery store (store owner) had been shot in the forehead, and his body was lying inside the store.
d)A few days after the shooting, while in Town, the first applicant learnt through his family that a customer who had witnessed the shooting informed the police that the killer resembled “my father’s son (referring to me)”. The Sri Lankan police had gone to the first applicant’s parents’ house in the Village in search of the first applicant.
e)The first applicant’s brother and mother fled Sri Lanka in 2006. The first applicant did not know the whereabouts of his brother and mother, but “[m]ore recently” the first applicant was able to contact them: “they had sought asylum in France and reside in France at the present time”. The first applicant believes his mother and father fled due to the problems they faced due to police visits; and also “due to problems they had in the village”.
f)The first applicant’s brother worked for the LTTE as a photo editor, and he also engaged in combat for a short period during the final phase of the war. The first applicant believes this was one of the reasons the first applicant’s brother left Sri Lanka in 2006.
g)The first applicant returned to the Village in 2009 because his sister continued to reside there. The first applicant’s brother in law was a senior member of the LTTE; he had been targeted by the Sri Lankan Army (SLA) who had shot him in the leg. The first applicant’s brother in law left Sri Lanka at the end of 2006 or in early 2007.
h)The “CID” (that is, the Criminal Investigation Division) targeted the first applicant when he returned to the Village. On the first applicant’s way to work the CID took his National Identity Card (NIC), and the first applicant was told to collect it from the army camp (Camp). The first applicant was detained for three days at the Camp and there interrogated and tortured. The first applicant was repeatedly asked whether he was a member of the LTTE who had been spying on the authorities in the area.
i)On a second occasion the SLA and CID came to the first applicant’s home and took him to the Camp. The first applicant was detained for two days and was there again interrogated and tortured. On a third occasion CID officers came to the first applicant’s home, and took him to another camp. He was held in this camp overnight, and was there interrogated and tortured.
j)On a fourth occasion – in early 2010 – a group of police officers came to the first applicant’s home and took him to the Village police station. The first applicant was detained there for two days. He was beaten with wires and by hand. The police officers accused the first applicant of having shot the store owner in 2006. The police officers took away the first applicant’s NIC, but they were unaware the first applicant held two NICs. The first applicant was then transferred to the police detention centre situated behind the Village court, and he was detained there for approximately one week.
k)The first applicant had two NICs because in 2008 he had lost the NIC that had been issued to him 2005. The first applicant was issued with a second NIC with the assistance of the “Grama Sevaka” but, a few months later, someone found the 2005 NIC and handed it to the “Grama Sevaka office”. The first applicant did not return the 2008-issued NIC and “continued to be in possession of two genuine NIC cards since then”.
l)The first applicant was transferred to a jail and was detained for five to six months. He was produced to the Village court twice. He was charged with being a member of the LTTE who murdered the store owner in 2006.
m)The first applicant decided to bribe his way out of jail; and one night he paid an amount of money to a jail guard to let him escape at night. The first applicant also paid bribes to other officials inside the prison. On his escape a friend of the first applicant drove him to an area in the Mannar district where he arranged to meet the third applicant. The first and third applicants eventually departed Sri Lanka illegally by boat.
n)The first and third applicants travelled to Malaysia where they remained between four to five days; they then departed Malaysia by boat and entered Indonesia. Sometime in 2011 the first and third applicants were detained by Indonesian immigration officials, and were transferred to an Indonesian jail. They remained in jail for one month, but were released after the third applicant gave birth to the second applicant.
o)In the meantime, in November 2010 the first and third applicants registered at the Office of the United Nations High Commissioner of Refugees (UNHCR). The first and third applicants were interviewed in 2011, but were later notified by telephone that their application for protection had not been accepted because, the first and third applicants were told, they were unable to provide evidence in support of their claims.
p)When in jail in Indonesia, an official from the Sri Lankan embassy in Indonesia visited the first and third applicants. The official took the details of the first and third applicants, and assured them it was safe to return to Sri Lanka. A few days later the first applicant learnt that CID officers had gone to his sister’s house in the Village. The CID officers knew the first applicant was in prison in Indonesia, and they were causing problems for his sister. The first applicant told his sister to pay the CID officers some money.
q)A “few months ago”, the car in which the applicants were travelling caught fire, and they narrowly escaped death. All of the applicants’ “identity documents and other documentary evidence in support of our claims were completely destroyed in the fire”.
r)Before the third applicant fled Sri Lanka, she informed her parents that she and the first applicant intended to flee Sri Lanka. The third applicant’s parents told her that once the first and third applicants were to flee Sri Lanka they would flee to France. The first and third applicants are unaware of the whereabouts of the third applicant’s parents.
s)The first applicant claimed he would face serious harm by the Sri Lankan authorities for a number of reasons. Relevant to ground 3 of the amended application is the claim that the first applicant fears harm because he does not have any form of identity documents and, for that reason, the authorities would be suspicious of him.
The first applicant provided a number of documents in support of the claims he stated in his statutory declaration. These included three documents issued by the UNHCR, each titled “Consent to Share and Release Information”, one apparently signed by the first applicant, one by the first applicant as the father of the second applicant, and one by the third applicant, each recording a consent to the UNHCR releasing and sharing information between the government of Australia (represented by what is now named the Department of Home Affairs (Department)) and the UNHCR.[3]
[3] CB172, CB174
By email sent on 31 August 2016, the applicants’ representative provided to the Department a statement made by the third applicant.[4] She said she has lost contact with her parents and brother. She does not know whether her parents are still living in Sri Lanka. The third applicant’s brother is in France, but she does not “have his contact”. The third applicant’s father had only one sister but she “was a member of the LTTE and later had a martyr death”. The third applicant also said that the army “will some-how or other put my husband in prison”.
[4] CB223-225
Course of application before delegate
By letter dated 11 August 2016 the delegate invited the first and third applicants to be interviewed by the delegate on 2 September 2016;[5] and it appears the delegate interviewed the first and third applicants on that day. One of the matters the delegate explored with the first and third applicants was their registration with the Office of the UNHCR in Indonesia.
[5] CB219
The first applicant said that, about eight to nine months after he registered with the UNHCR, he was called for an interview, and he had a total of three interviews; the claims he made to the UNHCR were the same as those he made in support of his application for a SHEV; the UNHCR called the first applicant to advise him that his case had been refused; he was told his claim had been refused because he could not provide evidence; the applicants arrived in Australia; the first applicant obtained evidence of his claims but it was destroyed in a fire; the UNHCR issued no documents to the applicants.[6]
[6] SCB8
The third applicant told the delegate she attended one interview with the UNHCR in Jakarta; the UNHCR provided registered photo identification on paper; and she otherwise gave evidence to the same effect as the first applicant.[7]
[7] SCB8
By letter dated 1 November 2016 the delegate informed the applicants’ representative that information the applicants provided to the Department indicated the applicants had previously sought asylum at an Office of the UNHCR, and that the application was refused.[8] The letter stated that this information was relevant to whether each of the applicants was an “excluded fast track review applicant”, explained the significance of that question, and invited the applicants to provide their comments. To appreciate the nature and significance of the question, and because the question is relevant to the new ground in the FAA, it is necessary to set out the meaning of “fast track review applicant” because “excluded fast track review applicant” is defined by reference to that expression.
[8] CB301
Statutory provisions
“Fast track review applicant” is defined to mean a “fast track applicant who is not an excluded fast track review applicant”. The expression “fast track applicant” is defined in s.5(1) of the Act as
(a)a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing centre; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination; or
(b)a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).
The expression “excluded fast track review applicant” is defined in s.5(1) of the Act to mean, among other things, a “fast track applicant: (a) who, in the opinion of the Minister . . . . (iv) has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country”.
It is common ground that each of the applicants is a “fast track review applicant”. Thus, unless any of the applicants is an “excluded fast track review applicant”, each would have been entitled to a system of merits review provided for by Part 7AA of the Act if the delegate were to have refused to grant the applicants a SHEV.
Delegate’s decision
The applicants responded to the delegate’s letter through their agent by email sent on 9 November 2016 which attached a statement made by the first applicant.[9] In his statement the first applicant said the Indonesian UNHCR did not examine his and the third applicant’s case “in a proper way”; there is nobody in Sri Lanka to provide evidence for the first and third applicants; and the UNHCR informed the first and third applicants by telephone that their case was not accepted. The applicants’ representative, in his email, submitted that, in the absence of written confirmation from the UNHCR of the telephone notification of the UNHCR’s apparent decision, it might be reasonable for the Department to “conduct the required checks with UNHCR, in order to confirm if in fact the applicants were refused by UNHCR as claimed”. The applicants’ representative otherwise submitted the applicants were not excluded fast track review applicants.
[9] CB306-307; CB309
On 2 December 2016 the Department initiated steps to request “UNHCR checks” in relation to the applicants,[10] but the request was cancelled on or shortly after 23 February 2017.[11] That appears to have occurred because the delegate decided that none of the applicants is an “excluded fast track review applicant”. The delegate’s reasons for so concluding are contained in the decision record the delegate issued on 23 February 2017 in which he concluded he was not satisfied the applicants satisfied the criteria for the grant of a SHEV.
[10] CB312
[11] CB336
On 23 February 2017 the delegate decided not to grant the applicants a SHEV. In the decision record the delegate records the opinion that none of the applicants meets the definition of “excluded fast track review applicant”. The delegate principally relied on their being no written decision from the UNHCR, and his acceptance of the applicants’ representative’s submission that there may have been some misunderstanding during the telephone call from the UNHCR official using a Tamil interpreter over the phone. The delegate also said that the first and third applicants’ expecting a baby at this time might have contributed to any misunderstanding the applicants had during the telephone call.[12]
[12] SCB9
Authority’s reasons
In relation to the first applicant the Authority accepted: the first applicant is a Tamil born in the Village; a number of his original identity documents were destroyed in a fire; the first applicant grew up and lived in the Northern province when under LTTE control; his family was displaced during the civil war; the first applicant’s father was killed by the SLA in 2004; the first applicant attended a Pongu Tamil protest event in Jaffna; a number of relatives, including his brother, cousin, and brother-in-law, were involved with the LTTE to some degree; the first applicant’s brother in law had an LTTE connection, and may have been shot by the SLA; in 2009 the first applicant was stopped by the CID, taken to a camp, detained for three days, questioned and assaulted while held, and that one month later the CID came to the first applicant’s home and took the first applicant for questioning a further two times where he was again physically mistreated; the first applicant’s mother and brother left Sri Lanka and had sought asylum in France; while detained in Indonesia the first and third applicants were visited by Sri Lankan officials who took their details and talked to them about returning to Sri Lanka; shortly after this visit CID officials visited the first applicant’s sister and demanded money from her, and the first applicant’s sister sought the assistance and protection of a women’s support group; and the first applicant registered with the UNHCR in Indonesia.
Although the Authority accepted the first applicant’s brother worked as a photographic editor for the LTTE, it did not accept his brother had a combat role with the LTTE. While the Authority also accepted there was evidence the store owner in the Village was killed, the Authority was not satisfied the first applicant was accused of the murder of the store owner, or that he was arrested in 2010, held in detention at the Village police station and went to prison for six months, or that he attended court on related charges, or that he had escaped from the prison. The Authority found the first applicant fabricated these claims.
As for the third applicant, the Authority accepted: she was born in Jaffna; that a number of her original identity documents were destroyed in a fire in Australia; she grew up in the Northern Province where she was subjected to regular identity and security checking by the SLA; the third applicant’s aunt was a LTTE martyr; the third applicant attended a Pongu Tamil event at school and was subsequently questioned by the CID, and that she attended a protest meeting in 2009; the third applicant’s parents and brother are no longer in Sri Lanka; and she has no immediate family members remaining in Sri Lanka. The Authority, however, did not accept that the third applicant ceased her studies because the first applicant had been harassed.
As for the second applicant the Authority found she is stateless, and that, if she returned to Sri Lanka, she would do so as a failed asylum seeker without original identity documents.
Having made these findings, the Authority considered whether each of the applicants satisfied the criteria for the grant of a SHEV, as provided for in s.36(2)(a) and s.36(2)(aa) of the Act. First, although the Authority accepted the first applicant has an ongoing fear of returning to Sri Lanka because he is a young Tamil from an LTTE controlled area with familial links to the LTTE, and whose father was shot by the SLA, the Authority was not satisfied the first applicant’s fear is well-founded. The Authority similarly was not satisfied the third applicant would experience harm on her return to Sri Lanka because she is a Tamil woman from the north of Sri Lanka.
Second, the Authority was not satisfied the first and third applicants have a well-founded fear of persecution because of their having been interviewed in Indonesia, their illegal departure from Sri Lanka, their returning as failed asylum seekers, or their returning to Sri Lanka without original documents. The Authority relied on the following matters:
a)it found that the Sri Lankan officials took details from the first and third applicants when they were in detention in Indonesia in connection with administrative procedures related to the processing of the first and third applicants on their return to Sri Lanka;
b)it accepted that on their return to Sri Lanka the first and third applicants will be subject to processing on arrival by various Sri Lankan authorities, including the CID, who will check travel documents and identity information of returnees against the immigration database, intelligence databases, and records of outstanding criminal matters;
c)it was not satisfied that the fear the first and third applicants claimed from their having lost their original identity documents in Australia is well-founded;
d)it accepted that the lack of original documents may result in longer processing on return but, given the Authority did not accept the first and third applicants have profiles of concern to the authorities, it did not accept there is a real chance that this will result in harm to the first and third applicants; and
e)it accepted the first and third applicants may be questioned by the police at the airport and charged under the Sri Lankan Immigration and Emigration Act for having departed Sri Lanka illegally, and that this may result in short periods of detention while awaiting bail, and the imposition of a fine; but the Authority was not satisfied this would constitute significant harm, or involve the application of discriminatory laws or the application of laws in a discriminatory manner.
Third, the Authority was not satisfied the second applicant faced a real chance of harm because she is stateless, or because of the profile of the first and third applicants as Tamils from the north, being profiles the Authority found would not attract adverse attention, or because the first and third applicants would return to Sri Lanka as failed asylum seekers, or because the second applicant would not be in possession of any original documents.
Finally, relying on the findings it made when assessing whether any of the applicants was a “refugee” within the meaning of s.5H of the Act, and also relying on additional findings, the Authority found there are not substantial reasons for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country there is a real risk the applicants will suffer significant harm and, for that reason, they do not satisfy the requirements of s.36(2)(aa) of the Act.
Ground 1 of FAA
The ground the applicants seek leave to add to the current amended application is as follows:
The second respondent (Authority) failed to make findings or form an “opinion” as to whether the applicants had “made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country” and thereby either failed to conduct a “review” under Part 7AA or purported to do so absent a jurisdictional fact.
Parties’ submissions
In his written submissions counsel for the applicants submits as follows:[13]
a)In “circumstances where the existence of an opinion as to whether the applicants had been rejected by the UNHCR determines the jurisdiction of the Authority to conduct the review, such an opinion is a jurisdictional fact”.[14]
b)The Authority did not consider whether any of the applicants were an “excluded fast track review applicant” and, for that reason, the Authority failed to exercise its jurisdiction.
c)The Authority’s failure to consider whether any of the applicants was an “excluded fast track review applicant” was material because, had the Authority considered that question, the Authority’s decision would not necessarily have been the same; and that is because the “claim to have been rejected by the UNHCR was interwoven into the applicants’ substantive claims and personal narrative”.
[13] Counsel for the applicants repeated the substance of these submissions at the hearing before me.
[14] Applicants’ Written Submissions, [30]
These submissions are based on two implied premises. The first is that, at least where there is material before the Authority that ought reasonably to raise a question about whether an applicant is an “excluded fast track review applicant”, the Authority itself must form an opinion about that question, and proceed to conduct a review only if the Authority does not form an opinion an applicant is “an excluded fast track review applicant”. The second, and less obvious, premise is that the Authority’s obligation under s.473CC(1) of the Act to “review a fast track reviewable decision” that is referred to it under s.473CA of the Act includes reviewing an opinion formed by the Minister or his or her delegate that a “fast track review applicant” is not an “excluded fast track review applicant”.
Counsel for the Minister submits as follows:
a)The Minister accepts the Authority only has jurisdiction to review a “fast track reviewable decision”; that a decision will not be a “fast track reviewable decision” if it is made in relation to a person who is not a “fast track review applicant”; and a person will not be a “fast track review applicant” if he or she is “an excluded fast track review applicant”.[15]
b)Whether a person is an “excluded fast track review applicant”, however, turns on the formation of an opinion “by the Minister alone”.[16]
c)The submission in (b) is subject to their being “nothing obvious on the face of the reference to raise a question about whether the decision is a fast track reviewable decision”.[17] There was nothing obvious, however, on the face of the review material to raise a question whether the delegate’s decision is a fast track reviewable decision.[18]
d)Even if the Authority came under a duty to consider whether the applicants were excluded fast track review applicants, there is no evidence to suggest it did not do so;[19] but if it failed to consider that question, any error would not be jurisdictional because had it done so the potential difference the Authority’s considering that question could have made to the outcome of the Authority’s review would have been to deny the applicant’s the opportunity of a review.[20]
e)Assuming the Authority did not consider whether any of the applicants was an “excluded fast track review applicant”, and that error was capable of being jurisdictional, the Authority’s not considering that question could not have made any difference to the decision the Authority made.
Proper construction of “excluded fast track review applicant”
[15] Outline of Submissions of the First Respondent, [12]
[16] Outline of Submissions of the First Respondent, [13]
[17] Outline of Submissions of the First Respondent, [13]. The quote is taken from judgment of Besanko J in AZR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2085, at [27]
[18] Outline of Submissions of the First Respondent, [14]
[19] Outline of Submissions of the First Respondent, [15]
[20] Outline of Submissions of the First Respondent, [19]
It is common ground that the Authority has jurisdiction and, at least in some circumstances, the Authority may come under a duty, to determine whether it should form an opinion about any of the matters about which, if the Minister forms an opinion (Relevant Opinion), would render a fast track review applicant an “excluded fast track review applicant” within the meaning of s.5(1)(a) of the definition of “excluded fast track review applicant”. The basis of at least the Minister’s acceptance of these matters is the following passage from the judgment of Besanko J in AZR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (emphasis added):[21]
In relation to the first ground of appeal, I have reached the conclusion that it is not necessary for the IAA to conduct any independent inquiry about whether what has been referred to it is a fast track reviewable decision. As long as there is nothing obvious on the face of the reference to raise a question about whether the decision is a fast track reviewable decision, and there was nothing of that nature in this case, the IAA is entitled to proceed on the basis that what has been referred to it by the Minister is a fast track reviewable decision. There is good reason to restrict the reference to the Minister’s opinion to the Minister alone because otherwise a potentially large inquiry might have to be made in each case by the IAA, not only as to the matter in subparagraph (iv), but also the other paragraphs and subparagraphs in the definition of excluded fast track review applicant.
[21] AZR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2085, at [27]
Besanko J’s observations contained in this passage do not appear to reflect any process of construction of the text that confers and defines the nature and extent of the Authority’s jurisdiction. But whether the Authority has jurisdiction to determine whether it should form a Relevant Opinion with a view to determining whether a fast track review applicant is an excluded fast track review applicant depends on the jurisdiction the Act confers on the Authority; and that, in turn, depends on the proper construction of the provisions that confer and define the nature and extent of the Authority’s jurisdiction.
The key notion that defines the Authority’s jurisdiction is that of a “fast track reviewable decision”. That expression denotes that which s.473CA of the Act requires the Minister to refer to the Authority, and that which s.473CC of the Act requires the Authority to review. Whether the Authority has jurisdiction to determine whether it should form a Relevant Opinion therefore, turns on the proper construction of “fast track reviewable decision”.
That expression is defined in s.473BB of the Act to mean, among other things, a “fast track decision in relation to a fast track review applicant”. Subject to exceptions it is unnecessary to mention, “fast track decision” is defined in s.5(1) of the Act to mean a “decision to refuse to grant a protection visa to a fast track applicant”. Given the definitions of “fast track applicant” and “fast track review applicant” I have already set out, a “fast track decision in relation to a fast track review applicant” means a fast track decision in relation to a fast track review applicant who is not an “excluded fast track review applicant”.
A person will not be an “excluded fast track review applicant” within the meaning of s.5(1)(a) of the definition in two circumstances; one is where the Minister or his or her delegate has not directed his or her mind to whether he or she should form an opinion of the sort contained in s.5(1)(a) of the definition; the second is where the Minister or his or her delegate has directed his or her mind to whether he or she should form such opinion, but the Minister or delegate decides not to form such an opinion. The second of these circumstances is what occurred in the case before me. The delegate directed his mind to whether he should form an opinion about whether any one of the applicants made a claim in a country other than Australia that was refused by the Office of the UNHCR in that country, but did not form such opinion.
The effect of these provisions is that whether a fast track applicant is a “fast track review applicant” within the meaning of s.5(a) of the definition of that expression depends on whether the Minister has formed the opinion of the sort identified in that paragraph of the definition. If the Minister has formed no such opinion, the fast track applicant is a fast track review applicant, and the fast track decision that has been made in relation to such fast track applicant must be referred to the Authority. In those circumstances the Authority’s jurisdiction is to review the “fast track reviewable decision”, namely, the decision not to grant a protection visa to the fast track review applicant. A decision whether a fast track review applicant is not an excluded fast track review applicant would fall outside the review of the decision not to grant a protection visa to a fast track applicant. In other words, the Authority would have no jurisdiction to determine whether an applicant is an “excluded fast track review applicant”.
The conclusion that, on the proper construction of “fast track reviewable decision”, the Authority does not have jurisdiction to form an opinion about whether an applicant is not an “excluded review applicant” may not be obvious where, as is the case before me, the Minister, by his delegate, has considered whether he should form a Relevant Opinion but, having considered that question, did not form a Relevant Opinion. The conclusion, however, is obvious where the Minister has not directed his or her mind to whether he or she should form a Relevant Opinion. The absence of a Relevant Opinion in relation to a person who otherwise falls within the definition of a “fast track applicant” means that that person will necessarily fall within the definition of “fast track review applicant” because there would not be an opinion which is an essential element of the definition of “excluded fast track review applicant” given in s.5(1)(a) of the Act. In those circumstances, the Authority could not itself form a Relevant Opinion because it is the Minister who must form the opinion; nor could the Authority review a Relevant Opinion formed by the Minister because there would be no opinion to review.
My conclusion is supported by the facts in FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[22] In that case an application for judicial review was made in relation to a decision by a delegate not to grant the visa applicant a protection visa on the ground that the visa applicant was an excluded fast track review applicant. It was the common assumption of the parties both before the primary judge, and before the Full Federal Court, that the Authority did not have jurisdiction to determine whether the visa applicant was an excluded fast track review applicant. That is apparent from the visa applicant not having applied for mandamus requiring the Minister to refer the delegate’s decision to the Authority. If, therefore, as the applicants submit, the Authority did not consider whether the applicants made a claim for protection in Jakarta that was refused by the Office of the UNHCR, it would have made no jurisdictional error.
[22] FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20
Given the passage from the judgment of Besanko J in AZR17, I find it is reasonably arguable that the Authority had jurisdiction to review the delegate’s opinion that none of the applicants made a claim for protection in Jakarta that was refused by the Office of the UNHCR. I am satisfied, however, that, on the proper construction of “fast track review applicant”, the Authority did not have jurisdiction to review the delegate’s opinion; and the Authority does not have jurisdiction for itself to determine whether any of the applicants is “an excluded fast track review applicant” because the applicants made a claim for protection in Jakarta that was refused by the Office of the UNHCR.
Other aspects of proposed ground 1
In this part of my reasons I assume the Authority did have jurisdiction to consider whether the applicants made a claim for protection in Jakarta that was refused by the Office of the UNHCR for the purpose of forming an opinion whether any of them is an “excluded fast track review applicant”. On this assumption, I do not accept the Minister’s submission that there would have been nothing obvious on the face of the material that was before the Authority to raise a question whether the applicants made a claim for protection in Jakarta that was refused by the Office of the UNHCR. The evidence suggested the applicants had applied to the Office of the UNHCR, and that they were told by telephone that their application had failed.
I also do not accept the Minister’s submission that there is no evidence the Authority did not consider whether the applicants made a claim for protection in Jakarta that was refused by the Office of the UNHCR. The Authority referred to the applicants having registered with the Office of the UNHCR in Indonesia, and simply noted in a footnote that the delegate had assessed the applicants are not excluded fast track review applicants. This suggests the Authority was of the (correct) view that it was for the delegate, and not for the Authority, to determine whether the applicants were excluded fast track review applicants. Thus, if the Authority was required to consider whether the applicants made a claim for protection in Jakarta that was refused by the Office of the UNHCR, and, for that reason, they were excluded fast track review applicants, it did not do so.
The final matter to consider is materiality. The applicants do not submit that, had the Authority considered whether they made a claim for protection in Jakarta that was refused by the Office of the UNHCR they were deprived of a real chance that the Authority would decide they were excluded fast track review applicants. They submit that, had the Authority considered that question, there was a real possibility that that would have caused the Authority to review that question together with the claims the applicants made, and this could have resulted in the Authority making a decision favourable to the applicants. The applicants do not, however, articulate how the Authority’s considering whether the applicants made a claim for protection in Jakarta that was refused by the Office of the UNHCR could have resulted in the Authority making a decision favourable to the applicants. For that reason, this part of the applicants’ claim, therefore, is not reasonably arguable. That, in turn, has the consequence that ground 1 of the FAA does not disclose a reasonably arguable case that the Authority made any jurisdictional error.
Conclusion
Even if I were to have accepted the applicants’ submission that the Authority had jurisdiction to consider whether the applicants made a claim for protection in Jakarta that was refused by the Office of the UNHCR, and that it was bound, but failed to consider that question, I am not satisfied the applicants would have an arguable case that any such failure would have been material to the Authority’s decision. For that reason alone, the proposed ground 1 has insufficient merit to warrant my granting leave to the applicants to file the FAA.
It follows that I propose to order that the application for leave to file the FAA be dismissed.
Ground 3
Ground 3 is as follows:
Further or in the alternative . . . the Authority failed to consider the claim made at the protection visa interview that the process of obtaining original documentation in Sri Lanka would expose the applicants to serious harm.
In his written submissions counsel for the applicants sets out a passage from the transcript of the hearing before the delegate where the applicants’ representative said:[23]
They don’t have identity documents … if one was to turn up in Sri Lanka and say . . . I don’t have any ID documents . . . Can you please issue me these new documents . . . . there is a process. The process would expose them, or could expose them, to serious harm.
[23] Applicants’ Written Submissions, [37]
In his written submissions counsel for the applicants submits that, although the Authority noted the applicants made this claim, it failed to deal with it in its discussion and findings.[24] At the hearing before me, counsel for the applicants took me to the transcript of the hearing before the delegate, and in particular to the following passage:[25]
Not having documents and being able to obtain documents in Sri Lanka are probably two different issues. What we forget to look at is the process of obtaining these documents if one was to turn up in Sri Lanka and say, I don’t have any ID documents original, I have copies. Can you please issue me these new documents. They would definitely need, at the very least, a birth certificate and a national ID card. Now to obtain these documents, there’s a process. The process would expose them, or could expose them, to serious harm, that’s my submission.
[24] Applicants’ Written Submissions, [38]
[25] T51.30. The transcript is annexed to the affidavit of L M Stark.
On the basis of this passage, counsel for the applicants submits the applicants made two different claims in relation to the applicants’ lack of identity documents. The first is the claim that the applicants feared harm because they do not have original documents; the second is they fear harm because of the process they will have to undergo to obtain original documents.
In his written submissions counsel for the Minister referred to passages in the Authority’s reasons where the Authority deals with the claims it understood the applicants made in relation to their not having identity documents.[26] In his oral submissions, counsel for the Minister submitted there were not two distinct claims based on the absence of identity documents. The applicants’ claim was that they would suffer harm because they did not have original identity cards. Counsel further submitted that if there was a distinct claim that the applicants would suffer harm as a consequence of the process of their having to obtain original documents, it was not a claim that emerged clearly from the materials before the Authority, or one that arose from established facts.[27]
[26] Outline of Submissions of the First Respondent, [22], referring to CB437, [51]; CB439, [65]
[27] Relying on SZUTM v Minister for Immigration and Border Protection [2016] FCA 45, at [38] (Markovic J)
The starting point in determining ground 3 is to identify what the applicants claimed about the absence of identity documents. In his statutory declaration the first applicant claimed that, because he had lost his identity documents he feared harm because the unavailability of identity documents might be a cause for suspicion. At the interview before the delegate, however, it was apparent both the first and third applicants held copies of their identity documents such as their Sri Lankan national IDs and their birth certificates.[28] The delegate, therefore, characterised the applicants’ claim as one based on a fear of harm, not because they do not hold identity documents, but because they do not hold original identity documents and that they feared harm in seeking to obtain original documents.
[28] SCB21; SCB24
On a fair reading of its reasons, the Authority characterised this part of the applicants’ claims not as one based on the absence of identity documents, but on their having to obtain original identity documents on their return to Sri Lanka;[29] and that is the claim the Authority considered and rejected in the following passage of its reasons (emphasis added):[30]
The applicants lost a number of their original identity documents in a fire in Australia, however I am not satisfied that their fear that this will result in harm on return is well-founded. I accept that the lack of original documents may result in longer processing on return, but as I have not accepted they have profiles of concern to the authorities I do not accept that there is a real chance that this will result in harm to the applicants.
[29] CB427-428, [7]; 15th dot point in relation to the first applicant; 10th dot point for the second applicant, and 3rd dot point for the third applicant
[30] CB437, [51]
The reference in this passage to “longer processing on return” is the Authority’s articulation of the only potential harm the applicants might experience because of the absence of original documents, namely, the applicants experiencing a longer processing time than would be experienced by returnees who had original documents.
It is true that in the passage from its reasons I have reproduced the Authority does in terms find that the applicants will not face harm in the process of obtaining original documents. There are, however, two things that may be said about this. First, beyond asserting that they would face harm in seeking to obtain original documents, the applicants did not articulate the type of harm they might face and how such harm might arise; and counsel for the applicants did not submit there was material before the Authority that could reasonably have suggested there was any basis for the applicant’s fearing harm for this reason. The Authority’s not referring to the claim of harm in the process of seeking to obtain original documents may, therefore, simply reflect the Authority’s view that there was no material or established facts to support the claim.[31] In any event, I am not satisfied that the Authority did not expressly refer to the applicants’ claim that they feared they would suffer harm in the process of their obtaining original identity documents for reasons other than there being no material or established facts to support the claim.
[31] Relying on SZUTM v Minister for Immigration and Border Protection [2016] FCA 45, at [38] (Markovic J)
The second thing that may be said about the Authority’s not making an express finding to the effect that the applicants will not face harm in the process of obtaining original documents is that the express finding the Authority did make, namely, the applicants did not face a real risk of harm because they did not have identity, or original identity, documents necessarily implied a finding that the applicants did not face a real risk of harm from the necessary consequences from the applicants not having identity documents, including the possibility of their having to apply for the issue of original documents.
For these reasons, ground 3 fails.
Grounds 1 and 2 of currently filed amended application
Counsel for the applicants did not make submissions in support of grounds 1 and 2 of the amended application as currently filed; counsel directed his submissions to the two grounds contained in the FAA. I have assumed, as did counsel for the Minister, that the applicants have abandoned grounds 1 and 2 of the amended application that is currently filed.
Conclusion and disposition
I propose to order that the application for leave to file the FAA be dismissed, and that the application be dismissed.
At the hearing counsel for the parties agreed that costs should follow the event, and that those costs should be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as those rules applied on 5 June 2017, being the day on which the applicants commenced this proceeding. That amount is $7,206. I propose, therefore, to order that the first and third applicants pay the Minister’s costs set in the amount of $7,206.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 3 July 2020
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