FEDERAL CIRCUIT COURT OF AUSTRALIA
| CME15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3042 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal breached s.425 of the Act – consideration of determinative issues in the review – whether matters form part of the substratum of facts relevant to the issues in the review – whether the Tribunal put to the applicant the question of his family providing surety for his bail – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.360, 425, 476 |
| Applicant: | CME15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3216 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 May 2017 |
| Date of Last Submission: | 13 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Baw |
| Solicitors for the Applicant: | Craddock Murray Neumann Lawyers |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
A writ in the nature of certiorari issue quashing the decision of the second respondent dated 26 October 2015.
A writ in the nature of mandamus issue directing the second respondent to reconsider and determine the matter according to law.
The first respondent pay the applicant’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3216 of 2015
| CME15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 November 2015, and amended on…
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Details
- Case
- [2017] FCCA 3042
- Decision Date
CaseChat Overview and Summary
The applicant, CME15, challenged a decision made by the Minister for Immigration. The core of the dispute concerned the level of specificity required when identifying "issues" for the purpose of procedural fairness obligations under section 425(1) of the Migration Act 1958 (Cth). The matter was heard by Judge Nicholls in the Federal Court of Australia.
The legal issue before the Court was to determine the appropriate level of granularity at which an "issue" must be identified and communicated to an applicant to satisfy the requirements of procedural fairness under section 425(1). This involved considering whether a broad characterisation of an issue, such as an applicant's credibility, was sufficient, or if specific factual elements that might determine the outcome of the decision needed to be separately identified.
The Court, referencing previous decisions such as *BMF16 v Minister for Immigration and Border Protection* and *ABV16 v Minister for Immigration and Border Protection*, applied the principle that procedural fairness requires a decision-maker to bring to an applicant's attention the critical issues or factors on which the administrative decision is likely to turn. The guiding principle is fairness, aimed at avoiding practical injustice. The Court noted that the obligation to give notice of issues should not be discharged at a high level of generality. Instead, critical issues must be identified with a level of specificity that gives meaning to the opportunity to respond. The Court illustrated this by referring to a scenario where a specific factual element, such as the marital status of an applicant's parents, could be determinative of a claim, and that failing to notify the applicant of this specific issue, even if it fell under a broader category of credibility, would betray an unfairness that section 425(1) was intended to prevent.
The legal issue before the Court was to determine the appropriate level of granularity at which an "issue" must be identified and communicated to an applicant to satisfy the requirements of procedural fairness under section 425(1). This involved considering whether a broad characterisation of an issue, such as an applicant's credibility, was sufficient, or if specific factual elements that might determine the outcome of the decision needed to be separately identified.
The Court, referencing previous decisions such as *BMF16 v Minister for Immigration and Border Protection* and *ABV16 v Minister for Immigration and Border Protection*, applied the principle that procedural fairness requires a decision-maker to bring to an applicant's attention the critical issues or factors on which the administrative decision is likely to turn. The guiding principle is fairness, aimed at avoiding practical injustice. The Court noted that the obligation to give notice of issues should not be discharged at a high level of generality. Instead, critical issues must be identified with a level of specificity that gives meaning to the opportunity to respond. The Court illustrated this by referring to a scenario where a specific factual element, such as the marital status of an applicant's parents, could be determinative of a claim, and that failing to notify the applicant of this specific issue, even if it fell under a broader category of credibility, would betray an unfairness that section 425(1) was intended to prevent.
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
The applicant submitted that this “guideline” on the content of an “issue” was applied recently in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 (“AVB16”) at [27] (per Bromberg J) as follows (and see [10] of the applicant’s second written submissions):“I recently considered and applied those authorities, to the extent that they related to the content of procedural fairness obligations, in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530. While that case was not concerned with the proper construction of “issues” in s 425(1), I drew upon the reasoning in those authorities to inform my determination in relation to the identification of issues in relation to procedural fairness obligations at common law. There, I noted (at [161]), by reference to the judgment of Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587, the need for a decision-maker to bring to an applicant’s attention ‘the critical issue or factor on which the administrative decision is likely to turn’ and (at [162]) that ‘the guiding principle is one of fairness’: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [28] (Allsop J, with whom Gyles and Conti JJ agreed on this point). Further, I observed (at [166]) that the purpose of the imposition of the obligation to accord procedural fairness is the avoidance of a ‘practical injustice’: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ). On that basis, and on the basis of the relevant reasoning in SZBEL and SZHKA, I rejected the Minister’s contention in that case that the requirement to give notice of the issues was discharged at a high level of generality. I there found (at [162]) that ‘the critical issues to be considered ... by the delegate needed to be identified at a level of specificity which gave meaning to the opportunity to respond’: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [22] (Flick J).”[Emphasis added by the applicant.] On the question of the level of specificity required in framing what is an “issue”, the applicant also referred to ABV16 at [24] and [30] as follows (and see [11] – [12] of the applicant’s second written submissions):“[24] In SZBEL, an applicant for a protection visa made a claim for protection on the basis of feared religious persecution, having become interested in Christianity. The Tribunal had rejected the visa applicant’s claim on the basis of the implausibility of three aspects of his account of his conversation. Only one of those three elements was not accepted by the delegate at first instance. The Minister in that case contended that it was the credibility of the applicant’s conversation which was in issue, and not the individual aspects of the account. In a unanimous judgment, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ found (at [42] – [43]) that the issues should have been identified at a higher level of granularity than the more broadly-framed issue of the applicant’s credibility, for which the Minister had contended.…[30] I am unable to accept the Minister’s submission. The formulation of the relevant issue at such a level of generality overlooks, or fails to capture, the number of variables within which it could, depending on the evidence before the Tribunal, become critical or determinative. Each of the elements of the Minister’s proposed ‘issue’ could, for a variety of reasons, prove to be determinative in a judgment as to whether the appellant may or may not become an unregistered ‘black child’ and face discrimination on return to China. For instance, had the Tribunal had reason to believe that the appellant’s parents were in fact married at the time of his birth, that factor would have been sufficient to defeat the claim. It follows, on the Minister’s characterisation of the issue, and putting to one side any parallel requirement under s 424A, that had an anonymous tip provided the appellant’s parent’s marriage certificate to the Tribunal following the hearing, the Tribunal would have no obligation under s 425(1) to give notice to the appellant that his parents’ marital status at the time of his birth was now in issue, even in circumstances where it had conducted the hearing on the acceptance that the appellants’ parents were, at that time, unmarried. That scenario clearly betrays an unfairness that s 425(1) was intended to prevent.”[Emphasis added by the applicant.]
Ratio Decidendi
Legal Principle Established
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