CRY16 v Minister for Immigration & Anor
[2017] FCCA 1549
•6 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRY16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1549 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of safe haven enterprise visa – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 425, 473CB, 473CC, 473CD, 473DA, 473DB, 473DC, 473DD |
| Cases cited: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 |
| Applicant: | CRY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2046 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing dates: | 16 December 2016 5 April 2017 |
| Date of Last Submission: | 15 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 6 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Symons |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
A writ of certiorari issue, quashing the decision of the Second Respondent dated 16 August 2016
A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2046 of 2016
| CRY16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter arrived unlawfully in Australia by sea. As a result of his method of arrival and the date upon which he arrived, he falls within the provisions of Part 7AA of the Migration Act 1958 (Cth) (the ‘fast track’ provisions).
The applicant made application for a Safe Haven Enterprise Visa, which has similar requirements to a Protection Visa although is governed by ss.5J and 36(2)(a) and (aa) of the Act.
A delegate of the Minister rejected the applicant’s visa application on the basis that the delegate did not accept the applicant was at real risk of serious harm if he were to return to Lebanon. The matter was then referred to the Immigration Assessment Authority (“the IAA”) in accordance with the provisions of the legislation.
The IAA notified the applicant of the referral in order to give the applicant an opportunity to provide further material in accordance with s.473DC of the Act. If provided, the IAA would need to consider any further material under s.473DD. Attached to the notification letter was a fact sheet and practice direction. Paragraphs [20] and [23] of the practice direction reflect the relevant legislation, although in a much more readable form.
On 16 August 2016, the IAA made a decision adverse to the applicant, but on a different basis to the decision made by the delegate. Whilst the delegate did not find that the applicant was at risk, the IAA concluded (at [29]) “I accept the applicant may face a real chance of harm from sectarian violence in his home neighbourhood.” As the IAA had accepted that there was a real chance of serious harm to the applicant it was also required to determine whether or not the chance of harm related to all areas of the country (as required by s.5J(1)(c) of the Act), and whether or not it was reasonable for the applicant to relocate within the meaning of s.36(2B) of the Act.
There is no discussion in the decision of the delegate as to the potential relocation of the applicant within Lebanon. The decision by the IAA does not, on its face, indicate that there was any material that it obtained from listening to the recording of the interview that the delegate held with the applicant that bore on the question of relocation. In short, there is nothing in the material in the court book to indicate that at any time the applicant was on notice that the decision maker would be considering whether or not he could relocate within Lebanon in order to avoid the harm that he feared.
As a result, counsel for the applicant argues that the applicant was not accorded procedural fairness, or alternatively the IAA failed to comply with their obligations under Pt.7AA of the Act when proceeding to determine the review, in circumstances where the applicant had never had notice that consideration may be given to him relocating to Beirut.
The statutory scheme within which the delegate was operating (Part 2 of the Act) specifically sets out that the relevant subdivision ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’ (see s.51A). The High Court said, in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 that:
[40] Necessarily, provisions which “deal with” “matters,” for the purposes of s 51A, will contain some procedural requirements which go some way towards satisfying the fundamental requirements of the natural justice hearing rule. Some such procedural requirements are necessary if s 51A is to operate and the procedures provided for are to be taken as exhaustive of the rule. Section 57 contains such procedures. The power given in
s 56, to invite an applicant to give further information, may be used to further procedural fairness but it does not mandate procedures which may be taken as a substitute for the requirements of the rule.
Within the regime that applies to the Administrative Appeals Tribunal (“the AAT”) (under a different part of the Act), s.425 imposes significant obligations upon the AAT. The operation of s.425, was considered by the High Court in SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 where it was said:
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review.” That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
Applying SZBEL to circumstances such as those that arise in this case (where relocation is being considered but has not been raised with the applicant as an issue, either at the delegate stage or at the review stage) Kenny J, in SZQPYv Minister for Immigration and Border Protection [2013] FCA 1133, concluded that such circumstances would ground a finding of error on the part of the review. Her Honour said:
75. Plainly enough, the delegate did not address the issue whether “relocation” was reasonable in making the primary decision. The answer to the first question is therefore ‘no’. In consequence, if the Tribunal were to decide the appellant’s visa application by reference to relocation, then it had first to comply with its obligation under s 425 of the Migration Act. This meant that it had first to provide the appellant with a sufficient opportunity to give evidence and present arguments relating to relocation, including the reasonableness of relocation. Absent an independent basis for its decision affirming the delegate’s decision, a failure on the Tribunal’s part to do so would amount to jurisdictional error.
Following this line of reasoning shows that it is necessary that an applicant have an opportunity to be heard on the issue of relocation (whether they can relocate to avoid the risk of harm). The failure to provide such an opportunity to be heard is not simply a breach of the principles of procedural fairness, but also a failure to implement the statutory objective of allowing an applicant a meaningful hearing with respect to the issues, at least at some point in the process.
However, it is important to distinguish the nature of the review carried out under Pt.7AA by the IAA from that carried out by the AAT. Unlike applicants before the AAT, there is no equivalent to s.425 that applies directly to the IAA in Pt.7AA of the Act. Part 7AA sets out that it is a complete statement of the rules of procedural fairness that apply, and provides significant restrictions upon the acceptance and consideration of evidence that was not before the delegate. In this regard, ss.473DC and 473DD relevantly provide:
473DC(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision undersection 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
In substance, two points arise in this case. The first is whether or not the applicant should have been given notice of the location to which it was thought that he may relocate, in order to enable him to comment upon it; and secondly how (if at all) this could be achieved within the strictures of Pt.7AA.
The argument of the applicant is relatively straightforward: it is difficult for one to make submissions and lead evidence about the ineffectiveness or impracticability of relocation to a particular location or city without knowing of the location or city in question. That is, whilst the applicant needs to show that he is unable to relocate in order to obtain the visa; until a particular location is identified it is difficult to put on evidence or submissions in more than a general format. The argument in response is that the applicant always bears the onus in this regard and must simply cover as many locations as possible in order to succeed in the claim. Whilst the applicant’s onus may not be a particular onerous task in a very small country, in a much larger country or region it would require an enormous amount of material, much of which may ultimately be irrelevant to the decision maker in any event.
If the applicant is expected to prove a negative, that is that they cannot relocate to anywhere else in a country or region, then it would place an applicant in an almost impossible situation if they were not given any notice of where the decision maker was considering that they could relocate.
For these reasons, I am persuaded that the applicant has not been accorded a reasonable opportunity to be heard in the context of this particular case, based upon the principles underpinning the decision in SZBEL, as applied in SZQPY. However, the rules of procedural fairness do not apply to the IAA, save to the extent provided for in the statute. Nonetheless, Driver J has found that the statutory discretions of the IAA must be exercised reasonably: see DZU16 v Minister for Immigration & Anor [2017] FCCA 851 (at [120]), relying upon Minister for Immigration v Li (2013) 249 CLR 332). Thus, his Honour found, ‘it was unreasonable for the Authority not to consider giving the applicant an effective opportunity to address the issue that it found dispositive’ (at [122]). As a result, in this case I conclude that the IAA had acted unreasonably in the relevant sense.
I turn then to consider whether any remedy for the applicant may lie within the confines of the statutory scheme that would allow the IAA to afford him a real opportunity to be heard, if the IAA found it appropriate after turning their mind to the question. Sections 473DA and 473DB state:
473DA(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.
473DB(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
Whilst the processes set out in the Act do not admit of the same degree of procedural fairness as a Supreme Court trial (and nor would that be expected in an administrative process), the provisions nonetheless provide for an applicant to be heard on the issues. The scheme proceeds on the basis that this would generally occur before the delegate and for a process in the IAA that is loosely analogous to an appeal court rather than a de novo hearing (such as the process before the RRT, now the AAT). Nonetheless the fundamental importance of a hearing on the dispositive issues means that at some point the IAA must turn its mind to whether the applicant should be given an effective opportunity to address the potentially dispositive issue if it has not previously been raised.
The two options open to the IAA are either:
a)to consider exercising its discretions under ss.473DC and 473DD to seek out that further information; or
b)to consider setting aside the decision of the delegate and remitting the matter for the delegate to determine afresh (similar to the way in which a Full Court would with respect to a trial judge’s judgment if there were not findings of fact with respect to an issue that became relevant as a result of a Full Court decision).
The provisions of ss.473CB and 473CD provide an opportunity for the IAA to obtain submissions and evidence, however, confine the use of that process to “exceptional circumstances”. In the scheme of the review process it could well be considered to be an “exceptional circumstance” when issues arise, as a result of the findings on the review, concerning which an applicant has not been given notice or been heard. Alternatively, in such circumstances, it may be appropriate for the IAA to overturn the decision of the delegate and then remit the matter to be determined again by the delegate according to law. Whether either of these processes may be more appropriate is ultimately a question of fact and degree, having regards to the specific issues raised in a particular case, determined by the IAA.
In this case the IAA has not considered whether the applicant had any opportunity to be heard on the key issue before the delegate. Had it done so, it would have been apparent that no opportunity to be heard on the relocation issue was provided. At this point it was necessary for the IAA to consider whether ss.473CB and 473CD were properly engaged and were suitable processes in the context of the case, or whether the power to remit to the delegate should be exercised.
As a result, having regard to the conclusions in DZU16, I find that jurisdictional error has been established and set aside the decision of the IAA. In the circumstances, I am persuaded that a writ of certiorari should issue quashing the decision of the IAA and remitting the matter for the IAA to determine according to law, allowing the IAA to consider whether the most appropriate course is to request further information from the applicant using its limited statutory powers or remit the matter to the delegate.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 6 July 2017
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