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)
Applicant: CSR16
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
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
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
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] The IAA…
Keep reading for free
Create a free CaseChat account to read CSR16 v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] FCA 2222
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the IAA's decision to withhold the documents in question was legally unreasonable and whether the IAA had correctly applied the provisions of Part 7AA of the Migration Act 1958, which governs the review of certain visa refusal decisions. The court needed to determine whether the IAA's decision to withhold the documents was justified under the Act and whether any procedural unfairness occurred.
The court found that the IAA's decision to withhold the documents was not legally unreasonable. It concluded that the documents were appropriately withheld under section 473GB of the Act, as they were provided in confidence and their disclosure could potentially harm national security or other sensitive matters. The court further held that the IAA correctly followed the legislative scheme outlined in Part 7AA and did not err in its review process. Consequently, the application was dismissed.
The final orders of the court were that the application filed on 23 September 2016 was dismissed, and the applicant was ordered to pay the costs of the first respondent.
Orders
Orders of the court
The application filed 23 September 2016 is dismissed.
The applicant pay the costs of the first respondent.
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.