CLV16 v Minister for Immigration
[2017] FCCA 1200
•5 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLV16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1200 |
| Catchwords: MIGRATION – Immigration Assessment Authority – the Authority failed to conduct a review in accordance with Part 7AA – the failure to consider submissions and new information was a denial of procedural fairness – the Authority had no power to revoke decision as steps under s.473EA had already been taken – the Authority had no power to make decision on 11 August 2016 –it is for the Court to grant relief in respect of a jurisdictional error, not the Authority to revoke its decision – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.473DA, 473DC, 473EA, 473FB, 476, pt.7AA. |
| Cases cited: Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 |
| Applicant: | CLV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2386 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 5 June 2017 |
| Date of Last Submission: | 5 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges Stephen Hodges Solicitor |
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
THE COURT DECLARES THAT:
The purported decision of the Immigration Assessment Authority of 11 August 2016 was beyond the authority of the second respondent and is invalid and of no effect.
THE COURT ORDERS THAT:
A writ of in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision dated 9 August 2016.
A writ in the nature of prohibition is issued requiring the Authority to determine the applicant’s review according to law.
The first respondent pay the applicant’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2386 of 2016
| CLV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for declaratory and/or Constitutional relief within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 9 August 2016, which was purportedly revoked and the subject of a further decision by the Authority under Part 7AA of the Act dated 11 August 2016.
The Authority’s decision dated 11 August 2016
In respect of the second decision dated 11 August 2016, the Authority identified that there was a failure by the Authority to take into account submissions and information provided by the applicant’s representative dated 21 July 2016 that were relevant to the applicant’s claims.
On a fair reading of the Authority’s decision of 11 August 2016, the Authority treated the first decision as one in respect of which there had been a failure to conduct a review under Part 7AA of the Act by reason of the failure to take into account the submissions and new information under the email dated 21 July 2016, no doubt in purported reliance upon the decision of the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”). That decision, as was pointed out in the several judgments, turned on the scheme of the Act as it then was.
The scheme of the Act now has the provision s.473EA in Division 4 of Part 7AA of the Act set out as follows:-
Immigration Assessment Authority's decision and written statement
Written statement of decision
(1) If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
How and when written decisions are taken to be made
(2) A decision on a review is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(3) The Immigration Assessment Authority has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
Return of documents etc.
(4) After the Immigration Assessment Authority makes the written statement, the Authority must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(5) The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a) a failure to record, under paragraph (1)(c), the day and time when the written statement was made; or
(b) a failure to comply with subsection (4).
Consideration of s.473EA
There is no question that this Court has jurisdiction in respect of a purported decision as well as a decision under Part 7AA of the Act. Indeed, that is made apparent by s.476(4) of the Act. Mr Cleary of counsel submitted that the words “a review under this Part” in s.473EA of the Act means that there must be a valid decision and that if the decision of 9 August 2016 is invalid on the basis of the decision in Bhardwaj, there is no decision on a review under this Part falling within s.473EA. Mr Cleary of counsel submitted that accordingly, the Authority was at liberty to approach afresh the exercise of the review power under Part 7AA of the Act.
Section 473EA of the Act must be read as a whole, and the subsections thereof have work to do. Section 473EA(3) of the Act does not refer to a power to vary or amend, but rather a power to vary or revoke. On any view, what has occurred in the present circumstances is a purported revocation.
The constraint in s.473EA of the Act makes clear the scheme of the legislation excludes the power of the Authority to recall its decision on the basis that it has failed to make a decision under Part 7AA of the Act, once the step identified under s.473EA(2) of the Act has been taken. On the evidence before the Court, the position is clear that the steps required under s.473EA(2) of the Act took place in respect of the decision dated 9 August 2016. Section 473EA(2) of the Act refers to a decision on a review is taken to have been made. Those are words that are not constrained by the concept of a decision on a review under this Part and should not be so read. Nor should those words be implied into s.473EA(3) in its reference to a decision to which s.473EA(2) of the Act applies.
Accordingly, the scheme of the Act is one in respect of which the Authority was functus officio: once the steps under s.473EA of the Act have taken place. The Authority has no power to revoke its decision, on the basis that the Authority is of the view that it has not made a decision on a review under Part 7AA because of a noncompliance with a statutory requirement or a denial of procedural fairness. Accordingly, the Authority had no power to make the decision dated 11 August 2016 and declaratory relief will be granted in respect of that decision.
Consideration of the validity of the Authority’s decision of 9 August 2016
The issue that then arose was whether the decision of 9 August 2016 was nonetheless a valid decision. In that regard, Mr Cleary of counsel took the Court to s.473DA and s.473FB of the Act as follows:-
S.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.
S.473FB
Practice directions
(1) The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:
(a) the operations of the Immigration Assessment Authority; and
(b) the conduct of reviews by the Authority.
(2) Without limiting subsection (1), the directions may:
(a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or
(b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview.
(3) The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision.
(4) If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.
(5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.
Mr Cleary of Counsel accepted that both the submission and the new information were material to the applicant’s claims. It is apparent from a reading of the submissions and the report that the material went to one of the applicant’s claims in respect of alleged communications and ongoing interest in him through his sister. The report and the submissions were clearly relevant.
Mr Cleary of counsel raised whether this Court could take into account the subsequent decision of the Authority in considering the materiality of the failure of the Authority to take into account the information attached to the email dated 21 May. The invalidity of the decision does not mean that this Court cannot take into account that the Authority itself thought that the failure on its part to take into account the material dated under the email 21 July 2016 gave rise to its earlier decision being a nullity. In any event, for the reasons I have just given, it is apparent that the submission itself and the new information under the email of 21 July 2016 were material to the applicant’s claims the subject of the application for review.
Mr Cleary of counsel submitted that because the Authority had no duty under s.473DC(2) of the Act to get, request or accept, any new information, there was no denial of procedural fairness and further, no breach of the statutory regime. The statutory regime under Part 7AA is the subject of the simplified outline that identifies what is intended to be, subject to the legislative provisions, a paper review that is efficient and quick. Nonetheless, the scheme of the provisions in Part 7AA creates a statutory opportunity for an applicant to provide new information to the Authority and a scheme under which the Authority itself can get new information. The scheme identifies circumstances in which certain new information must be the subject of an opportunity for the applicant to comment in writing or at an interview. The work done by s.473DA of the Act refers to the decision being an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
In the present case, as in all reviews that have been the subject of applications to this Court, following the determination by the delegate on 28 June 2016, the Authority wrote to the applicant on 29 June 2016, identifying that the matter had been referred to the Authority for review and identified the material that had been provided by the delegate. The letter explained the limited circumstances in which new information could be received and attached both a fact sheet and practice direction in respect of an opportunity for the applicant to put on submissions and new information.
The direction made under s.473FB of the Act identified a time constraint of 21 days for receipt of new information and had a page limit in respect of submissions and the explanation as to when the new information should be received, but no page limit in respect of the new information itself. The Authority’s letter sent on 29 June 2016 was in purported compliance with the obligations of procedural fairness that are not excluded by Part 7AA in explaining the nature of the process to the applicant and giving the applicant an opportunity for the Authority to exercise the powers given to it under Part 7AA.
Consideration of the failure to consider submissions and new information
The failure of the Authority in the present case to take into account the submissions and new information was a denial of procedural fairness not excluded by s.473DA or s.473DC of the Act. Further, to the extent that reference was made to s.473FB(3) of the Act, the statement that non-compliance with any direction does not mean that the Authority’s decision is an invalid decision is concerned with whether the non-compliance was mandatory. That provision does not exclude the consequences in the present case of the denial of procedural fairness to the applicant from the failure by the Authority to take into account the applicant’s submissions and new information which were received within the extended time period provided by the Authority to the applicant in the communications that followed the letter from the Authority.
Conclusion
The Authority in its second invalid decision was correct in its conclusion that there had been a failure to conduct a review in accordance with Part 7AA of the Act because of the denial of procedural fairness and that the decision made on 9 August 2016 was liable to be set aside for jurisdictional error. Whilst I accept it was efficient and quick for the Authority to revoke its first invalid decision, there was no power to do so. The Authority had no power to make the second decision. The scheme of the Act is one under which where jurisdictional error has occurred it is for this Court to grant appropriate relief, not for the Authority to revoke its decision and purport to engage afresh in an exercise of power under Part 7AA of the Act.
Accordingly, writs will be granted.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 15 June 2017
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