Cme23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1042
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CME23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1042
File number: MLG 1827 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 17 November 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to apply the correct legal test – whether Authority failed to afford procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 477. Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 26
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 20 October 2023, 8 November 2023 Place: Perth (via Microsoft Teams) Applicant: In person Counsel for the Respondents: Ms G Ellis Second Respondent: Submitting appearance, save as to costs. Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1827 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CME23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a visa and the matter was referred to the Immigration Assessment Authority (Authority) for review. The Authority affirmed the delegate’s decision. By application brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (Migration Act), the applicant seeks judicial review of the Authority decision.
The applicant advanced six grounds of application asserting several types of jurisdictional error, including that the Authority applied the wrong legal tests, failed to afford the applicant procedural fairness and failed to consider all of his claims for protection.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error. The application to this Court is therefore dismissed.
VISA APPLICATION AND DECISIONS
The applicant entered Australia by sea in November 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 14 April 2016 the applicant applied for a protection visa. In a statutory declaration that accompanied his protection visa application, the applicant claimed that he was at risk of harm based on his relationship with his cousin who was a former Liberation Tigers of Tamil Eelam (LTTE) member and who died in 2002. He also claimed that he was required to report to the Sri Lankan authorities and work in clearing landmines. He claimed that another person, K, who was also required to report to the Sri Lankan authorities, ceased attending the Sri Lankan Army camp to report and the authorities required the applicant to locate K and threatened to kill the applicant if he failed to find K. The applicant claimed that he could not locate K, so he fled to Colombo before coming to Australia.
On 23 November 2016 the applicant attended an interview with an officer of the Department to discuss his claims for protection.
A delegate of the Minister refused to grant the applicant a protection visa on 9 March 2017. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
On 25 September 2017 the Authority affirmed the delegate’s decision.
SUMMARY OF AUTHORITY DECISION
The Authority accepted that the applicant’s cousin was an LTTE member and that he died in 2002. The Authority did not accept that the applicant hid his cousin’s association with the LTTE from the authorities, or that the authorities became aware that he hid his cousin’s LTTE association. The Authority was not satisfied that the applicant would be suspected or perceived to be a LTTE member or that his profile was raised as a result of having a cousin who was involved in the LTTE and who died in 2002.
The Authority accepted that it was plausible that the applicant was required to sign a register and do some work for the Sri Lankan authorities but found that this was limited to a two-month period in 2009, rather than a two year period as the applicant had, at times, claimed.
The Authority did not accept that the applicant was given an ultimatum to find K in three days and threatened with death if he did not, and considered that the applicant had fabricated his claims about K’s disappearance, the ultimatum and the threat.
The Authority also considered the applicant’s profile as young Tamil Hindu man from an area that was previously controlled by the LTTE, and as a failed asylum seeker who departed Sri Lanka illegally, but it found that these matters did not give rise to Australia’s protection obligations.
The Authority therefore found that the applicant did not meet the criteria in s 36(2)(a) or 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW PROCEEDING
The application for judicial review was filed on 30 October 2017, which is within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
The application sets out the following six grounds:
1.The IAA applied the wrong legal test.
2.The IAA did not afford me procedural fairness.
3.The IAA erred in law by not correctly considering my claims for protection under s 5 J (1) of the Migration Act 1958 (Cth)
4.The IAA erred in law by nor correctly considering my claims under s36(2A) of the Migration Act 1958 (Cth).
5.The IAA erred in law by not correctly considering claims for complimentary protection under s 36(2) (aa) of the Migration Act (Cth).
6.The IAA did not consider all of my claims, correctly and accurately. I will provide all the relevant details.
Pursuant to an Order made by a Registrar of the Court, the applicant was required to file any amended application, any further affidavit and an outline of written submissions 28 days before the hearing. He did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the hearing, as required by the Order made by the Registrar.
The application first came before me for hearing on 20 October 2023. On that occasion, I explained to the applicant how the hearing would proceed, the role of the Court in a judicial review proceeding, the need to establish jurisdictional error in the Authority decision to be entitled to relief, and the need to provide further detail in relation to the grounds. When I invited the applicant to provide further detail about his grounds of application and the error he believed the Authority had made, he indicated that he was unable to do so, because he had not read the Authority decision or his application, which his previous lawyer helped him with, and did not know how to read these documents.
At this point, I formed the view that procedural fairness required that the hearing be adjourned to another day. In reaching this view, I was mindful of observations made by the Federal Court about the need to afford self-represented applicants an opportunity to provide particulars where their grounds are unparticularised, and that there may be occasions when it is necessary to adjourn a hearing to do this: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]; BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [33].
When the matter next came before the Court on 8 November 2023, the applicant confirmed that he had read the Authority decision and the Minister’s written submissions. I reminded the applicant that the Court would need more detailed information to properly understand his grounds and invited him to make submissions.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of a court in a judicial review proceeding is to ‘rule upon the lawfulness or legality of the [Authority’s] decision’ by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
To obtain relief from the Court, the applicant must establish that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (emphasis added)
CONSIDERATION OF APPLICANT’S GROUNDS
General matters raised at hearing
When I invited the applicant to make submissions and provide more details about his claims at the hearing on 8 November 2023, he initially submitted that the important issue is that he cannot go back to his country but the Authority said that he could go back to his country. Because of the problems he faced in Sri Lanka and those created by K, he had to come to Australia.
The submission strongly suggests that the applicant is disputing the outcome of the Authority decision and inviting the Court to engage in merits review. As I explained to the applicant at the first hearing, the Court does not have the power to consider for itself whether he meets the criteria for a protection visa. The matters first raised by the applicant in his oral submissions cannot therefore establish jurisdictional error.
Given that these submissions did not engage with the applicant’s grounds of application, I then invited the applicant to address the grounds separately. The applicant’s submissions in relation to those grounds are summarised in the discussion below.
Ground 1: Did the Authority apply the wrong legal test?
By ground 1, the applicant asserts that the Authority applied the wrong legal test. The ground of application does not identify which legal test was incorrectly applied. When I asked the applicant at the hearing why he says the Authority applied the wrong legal test, the applicant submitted that, in fact, he cannot return to his country. The submission clearly suggests that the applicant is seeking impermissible merits review.
There is nothing in the Authority decision to suggest that the Authority applied the wrong legal test. The Authority correctly identified that the applicant had applied for a protection visa, and considered whether he met the criteria in s 36(2)(a) and 36(2)(aa) of the Migration Act. In considering whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, the Authority had regard to the definitions of ‘refugee’ in s 5H of the Migration Act and ‘well-founded fear of persecution’ in s 5J of the Migration Act. The Authority appropriately considered whether the applicant had a well-founded fear of persecution if he were to return to Sri Lanka.
In considering whether the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act, the Authority appropriately considered whether there were reasonable grounds for believing, as a necessary and foreseeable consequence of being returned to Sri Lanka, the applicant would face a real risk of significant harm. In considering this, the Authority had regard to the definition of ‘significant harm’ in s 36(2A) of the Migration Act.
These were the correct legal tests to apply and I accept the Minister’s submission that the Authority applied those tests correctly to the applicant’s claims and made findings that were open to it on the evidence before it.
Ground 1 does not establish jurisdictional error.
Ground 2: Did the Authority deny the applicant procedural fairness?
By ground 2, the applicant asserts that the Authority failed to afford him procedural fairness. When I asked him at the hearing to explain the way in which the Authority denied him procedural fairness, the applicant submitted that the Authority had not made a decision according to the problems that he has, and instead made a decision of a general nature.
The Authority’s procedural fairness obligations are exhaustively set out in Division 3 of Part 7AA and ss 473GA and 473GB of the Migration Act: see s 473DA(1) of the Migration Act. The applicant has not identified any procedural fairness obligation amongst these provisions with which the Authority did not comply, and there is nothing in the materials before the Court to indicate that the Authority did not comply with the relevant provisions. In particular, I observe that:
(a)Subject to Part 7AA of the Migration Act, the Authority must review a fast track reviewable decision by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1) of the Migration Act. That is what the Authority did in the present matter.
(b)Section 473DC allows the Authority to get new information that the Authority considers may be relevant to the review. It does not have a duty to get, request or accept any new information, although the Authority must act reasonably in the exercise or non-exercise of its discretion in s 473DC. The applicant did not provide any new information to the Authority or request that the Authority get new information, and the Authority did not get any new information. No breach of s 473DC is evident.
(c)In circumstances where there was no new information before the Authority, the requirements of s 473DD, which regulates the circumstances in which the Authority may consider new information, and s 473DE, which requires the Authority to invite the applicant to comment on some types of new information, did not arise.
(d)No certificate was issued under s 473GA of the Migration Act, so that section does not arise for consideration. A certificate was issued under s 473GB. I accept the Minister’s submission that no jurisdictional error arises from the s 473GB certificate in the present matter. The Authority was not required to disclose to the applicant the fact of notification under s 473GB(2)(a) and there is nothing in this matter to suggest that the Authority unreasonably decided not to exercise its discretion to disclose the information to the applicant pursuant to s 473GB(3)(b): see BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [35], [36]. In any event, the Authority expressly found that the information covered by the certificate was not determinative or relevant to the task before it.
The applicant’s submission that the Authority denied him procedural fairness by making a decision that was general in nature cannot succeed for two reasons. First, it does not amount to an assertion that the Authority breached any of the provisions of Division 3 of Part 7AA or ss 473GA or 473GB of the Migration Act. Second, it is evident from the Authority reasons that the Authority carefully considered the applicant’s claims and did not make a decision that was general in nature. While the Authority relied on general country information in reaching its decision, it did so in the context of considering the risk of harm to the applicant given his particular circumstances and his particular profile. It was open to the Authority to rely on country information and this does not reflect the Authority making a general decision rather than one specific to the applicant.
Ground 2 is not established.
Grounds 3-5: Did the Authority fail to correctly consider the applicant’s claims for protection under ss 5J(1), 36(2A) or 36(2)(aa) of the Migration Act?
In his grounds, the applicant asserts that the Authority erred in law by failing to correctly consider his claims for protection under:
(a)s 5J(1) of the Migration Act (ground 3);
(b)s 36(2A) of the Migration Act (ground 4); and
(c)s 36(2)(aa) of the Migration Act (ground 5).
When I asked the applicant at the hearing why he believed the Authority made an error in considering his claims under the provisions of the Migration Act, the applicant responded that he asked for a protection visa because of the reasons he had given, and that he gave the true reasons, but the Authority did not grant him a protection visa.
It appears from the applicant’s submissions to the Court that the applicant is simply expressing disagreement with the Authority decision. This does not amount to jurisdictional error.
These grounds overlap with ground 1 above. The Authority clearly appreciated that s 5J was relevant to determining whether the applicant had a well-founded fear of persecution and had regard to that provision in the context of its consideration of whether the applicant met the refugee criterion. The Authority accurately identified the requirements of the complementary protection criterion in s 36(2)(aa) of the Migration Act and set out the definition of ‘significant harm’ in s 36(2A). There is nothing in the Authority’s reasons to suggest that it has misunderstood or misapplied the tests that it identified.
Grounds 3, 4 and 5 are not established.
Ground 6: Did the Authority fail to consider all of the applicant’s claims for protection?
By ground 6, the applicant asserts that the Authority did not consider all of his claims correctly and accurately. When I asked the applicant which claims the Authority failed to consider and why the applicant says the claims were not considered correctly or accurately, the applicant submitted:
(a)he had an acquaintance, K;
(b)he was transporting K to the town to sign the register, and after K had been missing for two to three days, they (by which I assume the applicant means the Sri Lankan authorities), were insisting that the applicant and K were together and the applicant knew where K was; and
(c)they (by which I again assume the applicant is referring to the Sri Lankan authorities) started to give the applicant trouble and said that he knew where to find K, but the applicant could not find K.
The Authority was required to consider those claims for protection expressly articulated by the applicant as well as any claims that were not expressly articulated but which clearly emerged from the material before the Authority based on established facts: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55], [58], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18].
The Authority in its reasons accurately and comprehensively summarised the applicant’s claims as set out in the material presented to the delegate. These included his claims in relation to the person that I have identified in this judgment as K. The Authority considered each of these claims in its reasons. The applicant has not identified, and the Court has not independently identified, any claim expressly raised by the applicant, or any unarticulated claim that clearly emerged from the materials before the Authority, that the Authority failed to consider.
Ground 6 is not established.
CONCLUSION
The applicant has not established that the Authority made any jurisdictional error in making its decision. It follows that the application to this Court is dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 November 2023
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