FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKV15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2851 |
| Catchwords: MIGRATION – Judicial review – decision of the former Refugee Review Tribunal – decision of delegate to not grant a protection visa affirmed – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Immigrants & Emigrants Act 1948 (Sri Lanka), s.45C Migration Act 1958 (Cth), ss.36, 45AA, 422B, 424A, 425, 476. Migration Regulations 1994 (Cth), reg.2.08F |
| Applicant: | CKV15 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 532 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 July 2016 |
| Date of Last Submission: | 8 August 2016 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 9 October 2019 (by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr MGS Crowley |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Mr PR Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That a writ of certiorari issue quashing the decision of the second respondent made on 26 October 2015.
That a writ of mandamus issue requiring the second respondent to re-hear the…
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Details
- Case
- [2019] FCCA 2851
- Decision Date
CaseChat Overview and Summary
This matter came before Judge Antoni Lucev of the Federal Circuit Court of Australia. The applicant sought judicial review of a decision by the former Refugee Review Tribunal (Tribunal) which affirmed a delegate's decision to refuse the applicant a protection visa. The central dispute concerned whether the Tribunal's decision was vitiated by jurisdictional error due to a denial of procedural fairness.
The primary legal issue before the Court was whether the Tribunal committed jurisdictional error by concluding that the applicant had "fabricated a claim to have steered a people smuggling vessel" without providing the applicant with adequate notice that this was an issue arising in relation to the decision under review, as required by section 425 of the *Migration Act 1958* (Cth). The applicant contended that the delegate's refusal was based on separate grounds, and the Tribunal failed to raise the steering issue in writing or orally during the hearing, despite questioning the applicant about his refusal to steer a vessel in the past.
The Court considered the applicant's submissions that the Tribunal's questioning and subsequent findings regarding the steering of the vessel were inadequate to alert the applicant that this was a critical issue. The applicant argued that the Tribunal's focus appeared to be on other aspects, and the limited references to the steering evidence in the decision, coupled with the Tribunal running out of time and inviting broad written submissions, prevented him from adequately addressing this newly emergent issue. The applicant maintained that had he been properly notified, he could have provided further evidence, testimony, or sought corroborative information.
The Court found that the Tribunal's decision was vitiated by jurisdictional error due to a denial of procedural fairness. The Tribunal's conclusion that the applicant had fabricated his claim to have steered the vessel was a significant adverse finding that was not adequately foreshadowed or put to the applicant for response. The Court ordered that the decision of the Tribunal be set aside and remitted to the Tribunal for redetermination according to law.
The primary legal issue before the Court was whether the Tribunal committed jurisdictional error by concluding that the applicant had "fabricated a claim to have steered a people smuggling vessel" without providing the applicant with adequate notice that this was an issue arising in relation to the decision under review, as required by section 425 of the *Migration Act 1958* (Cth). The applicant contended that the delegate's refusal was based on separate grounds, and the Tribunal failed to raise the steering issue in writing or orally during the hearing, despite questioning the applicant about his refusal to steer a vessel in the past.
The Court considered the applicant's submissions that the Tribunal's questioning and subsequent findings regarding the steering of the vessel were inadequate to alert the applicant that this was a critical issue. The applicant argued that the Tribunal's focus appeared to be on other aspects, and the limited references to the steering evidence in the decision, coupled with the Tribunal running out of time and inviting broad written submissions, prevented him from adequately addressing this newly emergent issue. The applicant maintained that had he been properly notified, he could have provided further evidence, testimony, or sought corroborative information.
The Court found that the Tribunal's decision was vitiated by jurisdictional error due to a denial of procedural fairness. The Tribunal's conclusion that the applicant had fabricated his claim to have steered the vessel was a significant adverse finding that was not adequately foreshadowed or put to the applicant for response. The Court ordered that the decision of the Tribunal be set aside and remitted to the Tribunal for redetermination according to law.
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
Ground 1 is as follows:The Tribunal’s decision was vitiated by jurisdictional error by a denial of procedural fairness in concluding that the Applicant had ‘fabricated a claim to have steered a people smuggling vessel’ (the Steering Conclusion) when the Applicant was not on notice that the Steering Conclusion was an ‘issue arising in relation to the decision under review’ under s.425 of the Migration Act 1958 (Cth.).Particulars1A. The Minister’s delegate refused the Applicant’s application for a Protection (Class XA) visa on 13 June 2014.1B. The delegate’s Decision Record did not identify as an issue whether or not the Applicant had steered a people smuggling vessel, but refused the application on entirely separate grounds.1C. The Tribunal did not raise the issue of whether or not the Applicant had steered a people smuggling vessel in writing or orally at the hearing on 22 June 2015 before the Tribunal ran out of time, and invited written submissions at large on ‘anything… we don’t cover’.1D. The Tribunal questioned the Applicant orally on the issue of whether the Applicant had a well-founded fear of persecution in Sri Lanka in light of the Applicant’s evidence that he had refused previous requests to steer a people smuggling vessel.1E. The Applicant’s representative filed written submissions reciting the grounds of the Applicant’s claims, including claims for complementary protection. It was not apparent to the Applicant or his representative that the question of whether or not the Applicant had steered the people smuggling vessel was newly in issue.1F. The Tribunal proceeded to affirm the delegate’s decision inter alia on the basis that the Applicant has ‘fabricated his claim to have been steering the boat’ in its Decision Record of 29 October 2015.(Emphasis in original) The applicant’s submissions were as follows:a)the applicant has maintained since his arrival that he had steered the people smuggling vessel in return for money and named three persons, including A, who were involved and disclosed the pre-trip logistics;b)the issue of whether the applicant was steering a people smuggling vessel was not dispositive before the Delegate and the Tribunal did not put to the applicant or advise him that the question of whether or not the applicant steered or was a member of the “crew” on the people smuggling vessel was now in issue;c)the Tribunal addressed the issue of whether it was the first occasion the applicant had steered a people smuggling vessel and that was inadequate to tell alert the applicant that it was in issue whether or not he was in fact steering the boat, while the Tribunal’s questioning signals the Tribunal’s acceptance of the proposition that he was steering the vessel on at least one occasion;d)of the 83 paragraphs in the Tribunal Decision there are just three references to the evidence concerning his involvement in steering the boat;e)the Tribunal touches upon a related issue in questioning the applicant about previous refusals to steer a vessel in the context of inquiring if the applicant had a well-founded fear of persecution in Sri Lanka, as if so he would have accepted the first offer to steer a people smuggling vessel, however, this is also inadequate for procedural fairness purposes as it signals to the applicant that the Tribunal had accepted the proposition that he was steering the vessel on at least one occasion;f)given the premise of the questioning was that the applicant had steered the boat on at least one occasion, it is singularly inapt to convey that there was a serious issue as to whether the applicant was in fact a member of the crew or that that fact was in jeopardy, rather it was assumed that he had done it on at least one occasion;g)the thrust of the exchanges between the Tribunal and the applicant is that the emphasis was not on whether or not the applicant was in fact steering the boat, but it was upon the resources at the applicant’s disposal to meet a fine were he repatriated to Sri Lanka;h)what SZBEL stands for was that the applicant really had no focal point and no direction in which to put the evidence or make submissions and to satisfy s.425 of the Migration Act the applicant must have brought to his attention the question towards which the submissions are to be directed;i)there is an element of circularity in the Minister’s proposition as if the issue is not raised by the Delegate, evidence needs to be produced by the applicant for the Tribunal to consider it but the Minister contends that if the applicant introduces the evidence, procedural fairness rights are thereby waived and that just does not correlate with SZBEL; andj)the Tribunal indicated that it had run out of time and invited written submissions on ‘anything ... we don’t cover’ therefore the applicant could not address directly the question of whether the applicant had in fact steered the people smuggling vessel and had the applicant known that this was in issue, he could, amongst other things, have highlighted his consistent statements, sought to persuade the Tribunal by giving additional testimony about the course and navigation, or subpoenaed the Department’s files for corroborative information concerning ‘A’.
Ratio Decidendi
Legal Principle Established
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