CSR16 v Minister for Immigration - [2017] FCCA 2222

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSR16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2222

Catchwords:
MIGRATION – Decision of the Immigration Assessment Authority – Part 7AA considered – certificate given under s.473GB of the Act – whether decision to withhold from visa applicant the documents the subject of the certificate was legally unreasonable – no legal unreasonableness – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, ss.36(2), 47, 65, 422B, 425, 438(b), 473BA, 473CA, 473CAE, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473JA, 473GB

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases cited:

Applicant:

CSR16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 2057 of 2016

Judgment of:

Judge Wilson

Hearing date:

28 August 2017

Date of Last Submission:

28 August 2017

Delivered at:

Melbourne

Delivered on:

13 September 2017

REPRESENTATION

Counsel for the Applicant:

Ms C. Symons

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr L. Brown

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application filed 23 September 2016 is dismissed.
The applicant pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2057 of 2016

CSR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(as corrected)

Introduction

This application for judicial review raised a fascinating and presently uncharted issue concerning the construction of Part 7AA of the Migration Act 1958 (Cth) (“the Act”).
By application filed 23 September 2016, as amended on 31 July 2017, the applicant sought judicial review of a decision of the

Immigration Assessment Authority (“the IAA”) made on

13 September 2016.[1]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 2222
Decision Date: 13 September 2017

CaseChat Overview and Summary

The applicant, CSR16, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning the disclosure of certain information. The dispute arose from a certificate issued by the Senior Reviewer of the IAA, pursuant to s 473GB(5) of the *Migration Act 1958* (Cth), which stated that specific information within a document titled "[omitted]" should not be disclosed to the applicant or their representative. The grounds for non-disclosure asserted in the certificate were that the information was given to the Minister or an officer of the Department in confidence.

The central legal issue before the court was whether the Senior Reviewer's decision to issue the certificate under s 473GB(5) of the *Migration Act 1958* was lawful. This required the court to consider the scope and application of s 473GB, which governs the disclosure of documents or information to referred applicants and their representatives in the context of the IAA's review process. The court also had to examine the nature of the information in question and the basis upon which it was deemed to be confidential.

The court's reasoning focused on the legislative framework established by Part 7AA of the *Migration Act 1958*, which outlines a limited and efficient review process for certain protection visa refusal decisions by the IAA. The court noted that s 473BA provides a simplified outline of this part, clarifying its purpose as a mechanism for efficient, quick, and unbiased review, generally conducted on the papers provided. While the IAA can, in exceptional circumstances, consider new material, the primary function is to review existing documentation. The court considered the certificate's assertion of confidentiality as a basis for non-disclosure under s 473GB, which permits such restrictions when information is provided in confidence. The court's ultimate determination would depend on whether the certificate was validly issued in accordance with the statutory requirements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is as well to set out the certificate’s contents verbatim, although the document itself was entitled a “notification” –The Senior ReviewerImmigration Assessment Authority (IAA)NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION COVERED BY SECTION 473GB OF THE MIGRATION ACT 1958I notify the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in the document titled [omitted] contained in PDF Portfolio [omitted].In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:(a)the document, or any matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.[8] [8] Court Book filed 23 November 2016 at p.298. In her written submissions at paragraph 14 Ms Symons stated that on 13 July 2016 the secretary of the department gave the IAA material characterised as “review material” in respect of the delegate’s decision and she footnoted the document at court book page 300 to 301. The document at those court book pages was the IAA’s acknowledgment of referral addressed to the applicant. It referred to the provision of those documents to the applicant. On 17 August 2016 the Asylum Seeker Resource Centre (“ASRC”) provided a written submission to the IAA in support of the applicant’s review application together with the applicant’s statutory declaration made 16 August 2016.[9] In that submission, ASRC contended that the material (presumably meaning the applicant’s statutory declaration of 16 August 2016) did not constitute “new information” for the purposes of s.473DD of the Act or that if it did, exceptional circumstances existed on the basis that the elements of s.473DD(a) and (b) of the Act were met. A further written submission was provided by ASRC to the IAA on 31 August 2016 making similar observations.[10][9] Court Book filed 23 November 2016 at pp.331-339.[10] Court Book filed 23 November 2016 at pp.341-342. At 12:27:07 on 13 September 2016 the IAA decided to affirm the decision not to grant the applicant a protection visa. Before examining the IAA’s decision in detail, it is useful to set out a précis of the legislative scheme proposed in Part 7AA of the Act. In recording the matters that appear below, I have drawn from the Minister’s written submissions[11] as formulated by Mr Brown for which I record my gratitude.[11] The first respondent’s outline of submissions filed 14 August 2017. The simplified outline of Part 7AA is set out in s.473BA of the Act. While that section may seem at first blush to be in the nature of commentary, a simplified outline provision in legislation has been held to be not only part of the Act itself but that it can be used for interpretation purposes for whatever value that may have. The Full Court of the Federal Court of Australia held as much in H v Minister for Immigration and Citizenship & Anor.[12] The salient portions of s.473BA of the Act state, relevantly paraphrased, [12] [2010] FCAFC 119 at [88].that – a)Part 7AA of the Act provides a limited form of review of certain decisions to refuse protection visas to some applicants; b)decisions to refuse to grant protection visas to fast track review applicants are known as “fast track reviewable decisions”; c)fast track reviewable decisions must be referred by the Minister to the IAA as soon as reasonably practicable after a decision is made; d)decisions to refuse to grant protection visas to fast track review applicants are generally not otherwise reviewable under the Act, although some decisions are reviewable by the Tribunal; e)in reviewing fast track reviewable decisions, the IAA is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review); f)the IAA does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it; andg)in exceptional circumstances, the IAA may consider new material and invite referred applicants to provide or comment on new information in an interview or in writing.