CRR17 v Minister for Immigration

[2018] FCCA 973

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRR17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 973

Catchwords:
MIGRATION – Show cause application pursuant to r.44.12 – no arguable case – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H(1), 473CB

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Cases cited:

EUQ17 v The Minister for Immigration and Another [2018] FCCA 696

S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476
AYE16 v The Minister for Immigration and Border Protection [2018] FCA 108
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: CRR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 567 of 2017

Judgment of: Judge Egan

Hearing date: 3 April 2018

Date of Last Submission: 3 April 2018

Delivered at: Brisbane

Delivered on: 3 April 2018

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the amended application be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 567 of 2017

CRR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application to show cause made pursuant to r. 44.12 of the Federal Circuit Court Rules 2001 (Cth). At the time of hearing any such application, the court may, pursuant to sub-rule 1(a) of that rule dismiss the application before it if it is not satisfied that the application has raised an arguable case for the relief claimed.

2. The history of the matter is that an application for judicial review of a decision of the Immigration Assessment Authority (IAA) was filed.  The IAA affirmed, on 2 June 2017, a decision of the Delegate of the First Respondent to refuse the Applicant’s application for a temporary protection visa (sub-class 785).  On 19 June 2017, the applicant filed an application which contained no grounds of review.  On 30 October 2017, Registrar Belcher ordered the Applicant to file an amended application by 15 December 2017.  On 14 December 2017, the Applicant sought an extension of time to 15 March 2017 in which to file his amended application, and in order for him to obtain supporting documents from Sri Lanka, such that there could be a review of his application upon receipt of those documents.  The Minister opposed the application for the extension of time as sought, and submitted that the matter should be listed for a show cause hearing in accordance with the orders made by Registrar Belcher on 30 October 2017.  On 21 December 2017, Judge Howard made orders in chambers listing the matter for mention and possible directions on 1 March 2018.  On 1 March 2018, the matter came before me when I ordered that the Applicant file an amended application by 13 March 2018.  I also listed the matter for a show cause hearing before me today.  The Applicant failed to file any amended application by 13 March 2018.  As it happens, the Applicant did file an amended application on 16 March 2018.  I will go to that amended application in due course.  I made further orders in chambers on 20 March 2018 relating to the filing and service of an outline of submissions by each party.  The First Respondent complied with those orders.  The Applicant did not comply with those orders. 

3. The amended application filed on 16 March 2018 seeks orders as follows:

   i)An order that the decision of the IAA or Minister be quashed;

   ii)A writ of mandamus directed to the Immigration Assessment Authority or Minister requiring them to determine the Applicant’s application according to law;

   iii)A declaration that the recommendation of the independent protection assessment reviewer was not made in accordance with law by reason of the ground/s of this application;

   iv)An injunction restraining the Minister by himself or by his Department officers, delegates or agents from making the future decision or taking the other action, the subject of the proceedings.

4. Under those final orders sought, there appeared, under the heading “Grounds of Application”, the following – the Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision. 

5. In my view, it is clear that there is an absence of particularity in the amended application which does not avail the Minister of the opportunity to understand fully the nature of the case made against him.  In the case of EUQ17 v The Minister for Immigration and Another [2018] FCCA 696, Judge Lucev correctly identified the proposition that an IAA decision is only liable to be set aside upon judicial review if it involves jurisdictional error (see S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 where, in a joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ, it was held that an error by the IAA will only constitute jurisdictional error if the IAA (a) identifies the wrong issue; (b) asks the wrong question; (c) ignores relevant material; or (d) relies on irrelevant material).

6. Those considerations will give rise to a jurisdictional error if they operate in such a way that the IAA’s exercise or purported exercise of power is thereby affected, resulting in a decision exceeding power or failing to exercise the powers given under the Migration Act 1958 (Cth) (“the Act”). It was also stated by their Honours that jurisdictional error might also arise if there is a denial of such procedural fairness, as is required pursuant to the provisions of the Act, as to the particularisation of the grounds required to found a valid application or, in this case, an amended application. It was noted, as here, that none of the grounds were properly particularised.

7. In the present case, there has been more than ample opportunity, as referred to above, for the Applicant to particularise the grounds upon which he seeks review of the decision of the IAA, but he has failed to do so.  The Federal Court in AYE16 v The Minister for Immigration and Border Protection [2018] FCA 108 at [25] per Barker J accepted the proposition that a failure to particularise a ground of review was a sufficient basis for the ground to be dismissed. The same view was expressed by Gilmore J in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

8. In this case, the Applicant, in his affidavit sworn on 19 June 2017, seeks to review the merits of the IAA decision, something which is inappropriate in relation to the hearing before me.  It is not my function to conduct a merits review of the IAA decision.  Rather, it is my task to determine whether the IAA fell into jurisdictional error when making its decision. 

9. When looking at the IAA decision, and the reasons for the making of its decision, it is clear that the IAA recognised that the Applicant claimed to fear harm and persecution on the basis that he was an ethnic Tamil, and that he was suspected of supporting or associating with, Liberation Tigers of Tamil Eelam (LTTE) members. The IAA had access to review material referred to it pursuant to s.473CB of the Act. It also obtained “new information” on its own initiative, such new information being a Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka published on 24 January 2017. The IAA found that exceptional circumstances justified the consideration of that report because that report post-dated the DFAT country report for Sri Lanka relied upon by the Minister’s delegate, namely, a report which had been published on 18 December 2015.

10. In any event, the reasons of the IAA make it clear that the IAA considered the country information provided in the Applicant’s submissions to be new information.  The IAA did not consider the country information provided by the Applicant for the purposes of conducting its review as it was not satisfied that it contained credible personal information, or that it could not have been provided before the delegate’s decision was made, or that exceptional circumstances existed that justified the IAA considering new information. 

11. When considering whether the Applicant was a refugee pursuant to the provisions of s.5H(1) of the Act, the IAA carried out an assessment as to whether the Applicant had established a “well-founded fear of persecution”. In doing so, the IAA carried out a detailed analysis of the issues surrounding such claim. In the end, the IAA found that there was not a real chance that the Applicant would suffer harm if returned to Sri Lanka on the basis of his being either a:

    a)Tamil;

    b)Person with an actual or imputed LTTE profile;

    c)Person who departed illegally and as a returned asylum seeker;

    d)Person with the totality of the Applicant’s circumstances.

12. In relation to the last-mentioned matters, specific reference to those matters can be found respectively at paragraphs 19, 24, 25-34 inclusive and 35 of the IAA reasons.  As to the issue of whether the Applicant had established that he was owed a complimentary protection against the real risk of significant harm, the IAA carried out an assessment of circumstances surrounding such issue and found that there was not a real risk that the Applicant would suffer significant harm if returned to Sri Lanka on the basis of his being either a:

    a)Tamil asylum seeker from a former LTTE-controlled area;  or

    b)A person who departed illegally and an asylum seeker. 

13. The IAA reasons associated with such a finding can be found at paragraphs 39 and 40 – 42 inclusive respectively of such reasons.

14. In all of the circumstances, therefore, I do not find that there has been any jurisdictional error committed on the part of the IAA. Accordingly, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001, I dismiss the amended application on the ground that such application has not raised any arguable case for any of the relief claimed. 

15. In doing so, I am mindful that one does not summarily dismiss applications of this nature lightly.  I should add that, during the course of the hearing, the applicant sought to hand up to me three documents.  Those documents, on their face, go to issues which would require me to conduct a merits review of the IAA decision and, accordingly, I did not receive or accept such documents and I return them to the Applicant accordingly.

16. Mr James, who appears on behalf of the First Respondent, seeks the costs of this application.  Costs, in my view, should follow the event, and I so order. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 19 April 2018