CUD21 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 802
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CUD21 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 802
File number(s): SYG 1569 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 30 August 2024 Catchwords: MIGRATION – safe haven enterprise visa application – whether leave should be granted to further amend application for review – where additional ground of review relates to whether applicant’s wife’s claims ought to have been considered with applicant’s claim by Authority – whether wife’s claims subject of a valid application – leave granted to further amend application – grounds 1 and 3 of further amended applications established – Authority failed to consider photographs before it in HEIC format – wife’s claims were subject of valid application when request made for claims to be considered as family unit and wife’s claims not considered by Authority Legislation: Evidence Act 1995 (Cth)
Migration Act 1958 (Cth) ss 47(2), 47(3), 91L, 473CA, 473CB, 473CC, 473DB, 473DC, 473FB & 476
Migration Regulations 1994 (Cth)
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
BMH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1062
DHJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 364
DHV16 v Minister for Immigration and Border Protection [2018] FCCA 349; (2018) 331 FLR 204
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523
Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63; (2021) 285 FCR 667
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90; (2017) 254 FCR 393
X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3; (2002) 116 FCR 319
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of last submission/s: 7 June 2024 Date of hearing: 9 February 2024 & 1 May 2024 Place: Hobart (by MS Teams) & Sydney Counsel for the Applicants: Mr Jackson Solicitors for the Applicants: Oxford Law Group Counsel for the First Respondent: Mr Reilly Solicitors for the First Respondent: Minter Ellison Lawyers ORDERS
SYG 1569 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUD21
First Applicant
CUE21
Second Applicant
CUF21 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.Leave is granted to the First Applicant to further amend the application for review by relying on ground 3 of the proposed further amended application at annexure B of the affidavit of Kate Hoang dated 30 April 2024.
3.The First Applicant forthwith file the further amended application on the electronic Court file and serve a sealed copy on the First Respondent.
4.A writ of certiorari issue quashing the decision of the Second Respondent made on 14 July 2021.
5.A writ of mandamus issue directed to the Second Respondent, differently constituted, to redetermine the review according to law.
6.The First Respondent pay the First Applicant’s costs fixed in the sum of $8,371.30.
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 TAGLIERI
These proceedings relate to judicial review of a decision of the second respondent, the Immigration Assessment Authority (“the Authority”), made on 14 July 2021, affirming a decision of a delegate of the first respondent not to grant a Safe Haven Enterprise Visa (“SHEV”) to the applicants. The first applicant is a citizen of Vietnam who arrived as an irregular maritime arrival on 8 May 2013 and applied for a SHEV on 4 September 2017. The second, third and fourth applicants are the children of the first applicant and they rely on his claims for protection.
The application for review was filed on 18 August 2021 and invokes the jurisdiction of this Court pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”). In order to succeed and obtain the relief sought the applicants needs to demonstrate jurisdictional error by the Authority. What constitutes jurisdictional error is usefully described in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] and in many other authorities since.
PROCEDURAL BACKGROUND
Subsequent to filing the application for review in August 2021, the first applicant was granted leave to amend ground 1 of his application at a hearing on 9 February 2024. Accordingly, he relies on his amended application filed 23 February 2024 (“amended application”), which contains two grounds of review.
The parties were then given the opportunity to address the amended ground,[1] with a view to concluding the review hearing. However, at the resumed hearing on 1 May 2024 counsel for the first applicant applied to further amend the application for review by adding a third ground. This ground was set out in a proposed further amended application annexed to his solicitor’s affidavit dated 30 April 2024.[2]
[1] Applicants’ further written submissions filed 8 March 2024 and first respondent’s further written submissions filed 2 April 2024.
[2] The affidavit of Kate Hoang dated 30 April 2024 was taken by the Court as read, unopposed.
On 1 May 2024, I heard oral submissions about whether the first applicant should be granted leave to further amend his application for review but also made Orders for the filing of further written submissions by both parties. The Court’s determination about the application to further amend and the substantive judicial review were both reserved.
Further written submissions were filed by the applicants’ on 24 May 2024 and the first respondent on 7 June 2024. All written submissions filed by the parties have been considered.
ISSUES TO BE DETERMINED
In view of the procedural background referred to above, the Court must determine if the application to further amend should be granted. If not granted, the issues for the Court will be whether any of the two grounds for review contained in the amended application are made out. If the application to further amend is granted, the Court will decide if any of the three grounds sought to be relied upon are made out.
APPLICATION TO FURTHER AMEND
The additional third ground sought to be relied upon, which is set out in the proposed further amended application, is:
3The First Respondent invalidly determined that the First Applicant’s wife, who was the second visa applicant, and made claims and provided a statement in support of those claims, was not validly part of the visa application, and invalidly excluded the claims and evidence in support of the second visa applicant’s application from the material considered when determining the claim.
3.1 The second visa applicant was in fact entitled to make the claim, and have that claim determined as a member of the family unit of which the second visa applicant was a part.
3.2 The failure to consider that material and determine that claim was a failure to consider an integer or integers of the visa applicants’ claims, and a failure to perform, and a misconception of the statutory task required of the Minister.
3.3 As a result, the Secretary failed to comply with their obligations to provide the Minister with material provided by the referred applicant to the person making the decision before the decision was made pursuant to section 473CB(1)(b) of the Act, and or other material relevant to the review pursuant to section 473CB(1)(c) of the Act.
3.4 To the extent that the Secretary did not provide the statement or the claims of the Second Applicant pursuant to section 473CB(1)(c) because the Secretary did not consider them relevant, that decision was infected by error going to jurisdiction, because it proceeded on the false premise that the Second Applicant’s claims were not validly made.
3.5 As a result, the Secretary’s failure to provide that material gave rise to a failure on the part of the Authority to perform its statutory task of review pursuant to section 473CC of the Act.
3.6 In the alternative, if the Secretary did provide the claims and evidence of the Second Applicant to the Authority, the Authority’s failure to review and determine those claims and consider that evidence gave rise to a failure on the part of the Authority to perform its statutory task of review pursuant to section 473CC of the Act.
3.7 In further alternative to grounds 3.2 to 3.5, the exclusion of the second visa applicant from the opportunity to provide further material in support of her claims prior to the First Respondent’s making of their decision and failure to make a decision about her claims gave rise to a failure to exercise jurisdiction so fundamental, and a failure to accord procedural fairness so significant as to be sufficient to invalidate the determination of the Minister’s delegate, and the matter should be remitted to the Minister’s delegate.
The first applicant relied on two affidavits of Kate Hoang, dated 15 April 2024 and 30 April 2024,[3] in support of the application to further amend. Both affidavits were read into evidence unopposed. An affidavit of Ms Hoang dated 13 December 2023 was also read into evidence, it being relied upon in support of grounds 1 and 2.
[3] Noting that both affidavits were filed on the electronic Court file on 30 April 2024.
The materials before the Authority which had been provided by the delegate of the first respondent were contained in Court Books and received in evidence unopposed. Volumes 1 and 2 of the Court Book filed by the first respondent on 11 November 2021 were marked as a single exhibit, Exhibit R1. Similarly, volumes 1 and 2 of the Supplementary Court Book filed 11 November 2021 were marked collectively as Exhibit R2.
The substance of the submissions about why further amendment of the application ought to be allowed were that:
(a)The first applicant had been entitled to have his application for a visa determined on the basis of the family as a whole, including the claims of his wife;
(b)It had only recently been discovered that the first applicant’s wife’s claims were in fact the subject of a valid visa application,[4] which a delegate of the first respondent had treated as invalid; and
(c)There was no specific prejudice to the respondents in allowing the further amendment to the application.
[4] Affidavit of Kate Hoang dated 15 April 2024 at [5]-[7] and annexure B, being a letter to the wife from the Department of Home Affairs dated 26 July 2023.
Accordingly, it was said that the interests of justice required permitting reliance by the applicants on the additional ground of review.
Counsel for the first respondent opposed the application to further amend, principally on the basis that the additional ground did not have merit and so it was submitted that allowing further amendment would be futile. In addition, it was submitted that the delay in seeking to raise the ground was relevant and weighed against leave being given.
Counsel for the first respondent expanded his submissions, contending that as the wife’s application was viewed as invalid by a delegate of the first respondent, her claims were not considered and could not be considered because of s 47(3) of the Act, which provides that “[t]o avoid doubt, the Minister is not to consider an application that is not a valid application.”
Further, the first respondent submits that the Authority was only tasked with review of the delegate’s decision,[5] which had nothing to do with the claims of the first applicant’s wife. That is, the Court’s function is limited to review of the Authority’s decision in respect of the first applicant’s claims and therefore the additional ground has no prospect.[6]
[5] Section 473CC of the Act.
[6] DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [22].
Both counsel agreed that the Court should determine the application to amend at the same time as determining the substantive review.
Whether leave to amend should be granted
On the evidence and submissions before the Court, there appears to be a dispute about whether the documents relating to the first applicant’s wife’s claims were before the Authority and if so, whether it was obliged to consider her material.[7]
[7] Applicants’ further written submissions filed 24 May 2024 at [31] onwards and first respondent’s second further written submissions filed 7 June 2024 at [5].
The decision and reasons of the Authority make it plain that it did not consider any of the wife’s claims,[8] and the first respondent concedes that to be so.[9]
[8] Exhibit R1, Court Book, Volume 2, pp 333-345.
[9] First respondent’s second further written submissions filed 7 June 2024 at [3].
While the preamble to the particulars of proposed ground 3 refer to a failure to consider, the more detailed particulars frame the proposed ground in terms of a failure by the Authority to perform its statutory task of review in accordance with s 473CC of the Act, either because the Authority did not have relevant information before it or, if it did, it failed to consider it.[10]
[10] See particulars at 3.2 to 3.5 of proposed ground 3, set out above at [8] of these reasons.
In my view, proposed ground 3 cannot be said to be hopeless or not reasonably arguable. There is clear authority that jurisdictional error may be established where:
(a)Materials before the Secretary for the purpose of their refusal of a visa are not provided to the Authority and this infects the proper discharge of the Authority’s statutory task of review;[11] or
(b)Relevant materials are before the Authority but are not considered by it.[12]
[11] EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [28] onwards.
[12] See Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
Therefore, I consider that there is a genuine and proper issue to be argued and decided, meaning that the proposed ground is not futile or necessarily bound to fail. That issue being whether there could be jurisdictional error in circumstances where the delegate made a decision about the first applicant’s visa solely on the basis of his claims, ignoring those of his wife because they were considered to be subject of an invalid application, and referred the visa application to the Authority pursuant to s 473CA of the Act for it to also determine the review on that confined basis.
Ms Hoang’s affidavit dated 15 April 2024 gives reasons for the delay in seeking to raise the third ground. The explanation given was not criticised, except that it was submitted that the application to further amend was made late. Noting the first applicant’s visa application plainly identifies that it is made on behalf of the family unit (including his wife), enquiry perhaps ought to have been made sooner about the status of the wife’s claims, but no specific prejudice is claimed or demonstrated by the first respondent because the ground is raised late. A satisfactory albeit not good explanation has been given for the delay in seeking to rely on ground 3.
For the reasons given above at [17]-[22], leave is granted to further amend the application for review. The first applicant is to forthwith file the further amended application on the electronic Court file and serve a sealed copy on the first respondent.
SUBSTANTIVE APPLICATION
In its written submissions dated 7 June 2024, the first respondent stated it was not necessary for there to be a further hearing to determine the substantive application whether leave to further amend was granted or not. In their written submissions of 24 May 2024, the applicants’ sought a further oral hearing to address the “complexities” of the amended application however, the Court considers this unnecessary.
Evaluation of grounds for review
Ground 1
There is no apparent dispute between the parties about the following facts based on the documents in Exhibits R1 and R2, and the affidavit of Ms Hoang dated 13 December 2023. Namely that:
(a)The first applicant sent five emails to the delegate that attached multiple photographs in Apple’s High Efficiency Image Container (“HEIC”) format for the purpose of his visa application. These photographs have since been converted to a different format and depict various political protests that the first applicant says he attended in Australia, some of which show him;[13]
(b)The photographs referred to above in subparagraph (a) were part of the materials given to the Authority for the fast track review; and
(c)The Authority did not view the photographs, albeit that the first respondent says that it was “impossible” for the Authority to do so because they were not in a viewable format at the time.[14]
[13] Affidavit of Kate Hoang dated 13 December 2023 at annexures A to E.
[14] First respondent’s written submissions filed 2 April 2024 at [2].
Ground 1 relies on jurisdictional error arising from the Authority fundamentally failing to undertake its task of statutory review because of an alleged failure to consider photographs in HEIC format that provided evidence of the first applicant’s involvement in anti-Vietnamese government protests since coming to Australia.[15]
[15] Applicants’ written submissions filed 10 January 2024 at [36]-[39] and 8 March 2024 at [25]-[38]; and the first respondent’s written submissions filed 29 January 2024 at [12]-[13] and 2 April 2024 at [2]-[5].
I have carefully considered the particulars of ground 1 as amended and the competing submissions of the parties,[16] including oral submissions made by counsel at the hearings on 9 February 2024 and 1 May 2024. I consider the submissions made on behalf of the first applicant to be more persuasive for the following reasons:
(a)It is not disputed that the HEIC format photographs were before the delegate. I agree that the only reasonable inference is that they were not viewed for the purpose of the decision taken by the delegate, because of the content of emails exchanged between the first applicant and the delegate;[17]
(b)The HEIC format photographs were provided to the Authority but I infer that they were not viewed as there is no reference to them in the Authority’s decision and reasons; and
(c)I infer from the Authority’s decision and reasons and the content of Ms Hoang’s affidavit dated 13 December 2023 that the Authority only viewed two JPEG format photographs relating to a protest in 2017 and Facebook posts,[18] and not the photographs in HEIC format.
[16] Applicants’ written submissions filed 8 March 2024 and first respondent’s written submissions filed 2 April 2024
[17] Exhibit R1, at p 224.
[18] Exhibit R1, Decisions and Reasons of the Authority, pp 333-343 at [4], [5], [29], [34].
I accept the submissions made on behalf of the applicants’ at [4]-[34] of the written submissions filed 8 March 2024 and find that the Authority failed to properly undertake its statutory obligations when conducting a review on the papers pursuant to s 473DB of the Act because review material before it was not viewed and so not considered. For clarity, the pertinent aspects of those submissions were:
25 The nub of the argument remains the same as it was in the original application; the photos were provided by the applicant to the Minister’s delegate (in HEIC format), and were referred to the Authority by the Secretary for the purposes of the Authority’s review, pursuant to section 473CB(1)(b) of the Act.
26. On one view, they were not “new information” at all. They were provided to the delegate, it is just that the software the delegate was using could decode photos provided in JPEG format but not photos provided in HEIC format.
27. Critically, in contrast to the “mistranslation” cases, there is no element of “interpretation” or subjectivity in decoding the image, as there is with a translation from one language to another, or even perhaps the example that Your Honour raised, a document that is in braille.
28. Nor is there a requirement in the IAA practice direction, given under section 473FB of the Act, that material provided by provided in electronic form be provided in a particular digital format.
29. Moreover, the impediment to reading them might equally be said to be the inability of the Department’s electronic equipment and software to represent the images as much as an issue with the images themselves. In other words, the deficiency might just as well be one resting with the Department as receiver of the image as the Applicant, the party submitting it.
30. On that view, they were simply “review material” pursuant to section 473DB(1) of the Act, and the Authority had to consider them, or at least consider what steps it could or should take to access them pursuant to section 473DB of the Act.
31. As the High Court put it in DVO16 (at [16]), the “over-riding duty of the Authority to review the fast track reviewable decision referred to it by the Minister is accompanied by a procedural duty to conduct that review by considering the review material provided to it by the Secretary…..”
32. The obligation of the Authority is to “engage in a de novo assessment of the merits of the decision in fact made by the delegate, ‘to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa has been met.’ The Authority’s de novo assessment of the merits is not of a lesser standard than that required of the delegate in make the referred decision.” (DVO16 at [22]).
33. On that view, the failure on the part of the Authority is a straightforward failure to review the material provided to it by the Secretary, and thus a constructive failure to perform its statutory task of review pursuant to section 473DB of the Act, either because it overlooked the existence of the photos in HEIC format, or because it simply did not consider it necessary to look at them.
34. This ground, articulated at ground one, particulars 1.4 to 1.7, simply more clearly articulates the ground as it was expressed in ground one of the original application, and reflects what was intended by that ground.
(footnotes omitted)
I reject the first respondent’s submissions that s 473DB(1) of the Act cannot require the Authority to “do the impossible” and that in the absence of the first applicant providing the photographs in JPEG format there could not be a relevant failure to consider review material.
The provisions in s 473DB of the Act are clear and mandatory. The Authority’s task is to conduct the review on the basis of the “review material”[19] given to it by the delegate. The statutory task mandatorily requires intellectual engagement with the review material. While “review material” is not expressly defined by the Act, what it constitutes is informed by s 473CB, and the nature of the review is delineated by s 473DB(1)(a) and (b) and by “on the papers”. Collectively, reasonably meaning it must include all documents that were before the delegate and forwarded to the Authority if relevant to the claims for protection.
[19] Section 473CB of the Act.
This conclusion is consistent with the reasoning of Thawley J of EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 where, amongst other things, his Honour stated at [42]:
The s 473CB(1) “review material” is, accordingly, a critical part of the process and errors under that provision are not as likely to be corrected or rendered immaterial by reason of an opportunity to be heard being provided in the review, as may occur under Part 7.
The HEIC format photographs were material before the Authority, but they were not viewed and consequently were not intellectually engaged with and considered. I reject the submission that it was “impossible” to view the documents. Instead, the unopposed evidence contained in Ms Hoang’s affidavit of 13 December 2023 demonstrates that the HEIC format photographs were capable of being, and could have been, viewed at that point in time, albeit with the use of an aid, namely a computer and software program.
As documents pursuant to the Evidence Act 1995 (Cth) mean “any record of information”, including “anything from which sounds, images or writings can be reproduced with or without the aid of anything else”[20] and because there is no express requirement in either the Act, the Migration Regulations1994 (Cth) or otherwise for an applicant to provide photographic evidence in a particular electronic format, they should have been considered. They were documents accessible by use of an aid and within the contemplation of a review on the papers, which is what the Authority was bound to perform.
[20] Evidence Act 1995 (Cth), Part 1 – Definitions, “document”.
The obligation of the Authority to conduct a hearing on the papers could not be confined in the way the first respondent submits to include only immediately viewable or readable material in these circumstances. A hearing on the papers must contemplate that a document accessible by aids also be engaged with and considered.
In the circumstances of this case, because of the relevance of the photographs and the nature of the fast track review, the Authority could not simply ignore the HEIC format photographs that were provided, and clearly relied upon, by the first applicant. By ignoring them, the Authority fell into jurisdictional error and the remarks of the Full Court of the Federal Court in X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3; (2002) 116 FCR 319 at [26]-[37] support this conclusion, albeit that the error in that case lay in not considering documents that required translation.
I accept the submissions of the applicants about what the Authority was required to do in circumstances where the HEIC format photographs were not immediately viewable.[21] In particular, it ought to have considered how the photographs could be viewed.[22] It was unreasonable not to have addressed this because there were no specific rules about the format in which an applicant must provide photographs and there is no indication that the Authority made any effort to utilise an electronic aid to view the photographs.
[21] Applicant’s further written submissions dated 8 March 2024 at [35]-[37].
[22] Section 473DC of the Act; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [101] & [125]; BMH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1062 at [114]; and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [63] onwards.
The failure to consider the HEIC format photographs was a material error as a fair like-minded individual might have reached a different conclusion had they viewed those photographs, which illustrated the applicant attending events and protests, other than as depicted in the two JPEG photographs and Facebook posts.[23]
[23] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506.
Alternatively, put another way and adopting the practical guidance of the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, the applicants have satisfied the relatively low bar required and established that the outcome might reasonably have been different if the additional HEIC format photographs had been considered.
In my view, the submissions by the first respondent in relation to the materiality of the failure to consider the HEIC format photographs invite the Court to engage in impermissible merit review. Accordingly, those submissions are rejected.[24]
[24] First respondent’s written submissions filed 29 January 2024 and the further written submissions filed 2 April 2024.
Ground 1 of the application for review is made out.
Ground 3
I have carefully considered the submissions by the first respondent that the scheme of the Act confines a review by this Court to review of what the Authority reviewed, being the delegate’s decision about the visa refusal.
Where the visa application form was lodged with the delegate on behalf of the entire family unit and both the first applicant and his wife had claims for protection in their own right, which is clear on the content of their applications,[25] the claims of each applicant were relevant to the assessment of the risk of harm to the other because of their familial connection.[26] To my mind, if the application by the wife was valid, the Authority was bound to assess the claims within it as part of the task of considering the individual and cumulative risk of harm claimed by the first applicant.
[25] Exhibit R1, Court Book, pp 51-191; and affidavit of Kate Hoang dated 15 April 2024 at pp 51-80 (noting the latter is also referred to in the Index to Exhibit R1, Court Book Vol 1, at Index No. 22(c)).
[26] Noting that country information before the Authority acknowledges the associated risks to family members: Exhibit R1, Court Book, at pp 254 and 256.
This is because the referred decision for the purposes of s 473CA of the Act is the decision of the first respondent in respect of the totality of the first applicant’s claims, including those involving associated risk due to his marriage and his wife. This reasoning is consistent with the statutory duty to continue to consider valid visa applications until they are decided,[27]and also with the statutory duty to consider the entirety of claims individually and cumulatively: see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
[27] Section 47(2)(b) of the Act.
Further, the conclusion logically and reasonably aligns with the principles now established by KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 that interrelated decisions of the first respondent which may impact on the entitlement of applicants to be granted visas, should not be finalised because of a need for efficiency. In the circumstances of this case, by the time the Authority reviewed the referred material it was the case in law that the wife’s application was valid. Accordingly, not considering her claims in connection with those of the applicant for the purposes of the decision on review was legally unreasonable.
In my view, it is no answer to ground 3 that the wife’s claim was thought to be based on an invalid application so did not need to be considered due to the provisions of s 47(3) of the Act. That is because it is clear in law that the question of what amounts to a valid visa application is an objective matter for the Court, not the opinion of the Minister or his delegate.[28] Further, the submission is not coherent with settled principles relating to administrative law concerning invalid decisions being void ab initio.[29]
[28] Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523 at [25]-[29] (“Kim”).
[29] Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70 at [66], citing Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637.
At the time of the review by the Authority, contrary to the belief of the delegate or the Minister and possibly also the Authority, the wife’s application for a SHEV enjoined procedurally with that of the first applicant and each of their applications dated 4 September 2017 were valid.[30]
[30] Established by Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63; (2021) 285 FCR 667 (“CBW20”) in respect of the wife’s application.
Although the applicant’s wife was instructed to make a new or fresh application in 2020 and then in 2023 to withdraw one of her valid applications,[31] there was no statutory requirement for her to do so. But there was a statutory duty to consider the first applicant’s claims in their totality including those related to claims by his wife and referred to in her valid application of 4 September 2017. At the time of the delegate’s decision and the Authority’s decision,[32] CBW20 had been decided, as had Kim.
[31] Exhibit R4, letter dated 21 August 2020, and annexure B to affidavit of Kate Hoang dated 15 April 2024, being a letter dated 26 July 2023.
[32] The delegate’s decision being made on 6 June 2021 and the Authority’s decision on 14 July 2021.
The Authority was obliged to review the first applicant’s application for a SHEV considering the claims made by his wife as they were part of the same family unit and both applications were valid and ought to have been assessed individually and cumulatively. That did not occur, even though the wife was never an unauthorised maritime arrival and so her application was always valid and not dependent on s 91L of the Act.
I cannot accept the effect of the first respondent’s submission that the scheme of the Act is such that valid applications erroneously treated as invalid, require a new application that will be considered separately.[33] I was not directed to a statutory provision, Practice Direction or otherwise to this effect. If correct, the first respondent’s submissions implicitly would involve administrative confusion and danger where duplication of claims and applications could potentially be rife and cause even greater complexity, which in my view is self-evident from the contents of the letter at annexure B of Ms Hoang’s affidavit dated 15 April 2024.
[33] As submitted at [3]-[6] of the first respondent’s second further written submissions dated 7 June 2024.
The submission does not sit comfortably with the statements in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [40]-[42]. Nor do they sit comfortably with the nature of fast-track reviews to be conducted by the Authority.[34]
[34] Section 473CA of the Act.
Finally, the first respondent submits that the Court cannot review the delegate’s decision to treat the wife’s claims as invalid.[35] By being satisfied that ground 3 is made out, I am not reviewing the delegate’s decision but merely concluding that the Authority failed to perform its required statutory task of review, conducted the review in a manner that was legally unreasonable or procedurally unfair.
[35] First respondent’s second further written submissions dated 7 June 2024 at [7].
I consider that material relating to the wife’s application was likely forwarded to the Authority or accessible by it. Although there appeared to be an apparent dispute about this, the content of the indices to the Court Book demonstrated that at very least some material relevant to the wife’s claims were before the Authority.[36] The Authority therefore had a duty to consider the claims as they related to the applicant’s claims as they were related, connected and in fact and law subject of a valid application.
[36] Exhibit R1, Court Book Vol 1, Index No. 5, 7, 8, 9, 13, 17, 19, 21, 22(c), (g), (m), (n), (p), (q), (r), (s) and (t); and Exhibit R1, Court Book Vol 2, Index No. 25, 28 and 29.
In addition, the first respondent’s own Practice Direction and information sheet directly acknowledge that combined applications for family members are permitted and that endeavours will be made to deal with them together.[37]
[37] Exhibit R1, Court Book, pp 271 and 277 at [23].
In arriving at the conclusion, I am mindful of the distinction drawn about the process of visa applications and the requirement for an application by each adult who seeks a visa. In SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90 at [235], Mortimer J as she then was stated:
Where family members are included with a primary applicant, the legislative intention is that there are multiple “applications” for a visa. That is because, as s 45 states, each non-citizen who wants a visa must apply for one. Exceptions to this are expressly stated, such as babies born after a visa application is made (reg 2.08) or a visa granted (s 78), and children or spouses travelling on another person’s passport with an offshore visa (s 83). For administrative convenience and because of existing policies around the grant of visas to families of those eligible for protection, one application form may be used. But that does not mean there is one “application”, any more than there is only one visa granted.
However, Her Honour’s reasoning does not directly address the practice and directions adopted by the first respondent which acknowledge and permit combined applications by family members being dealt with together, providing they are valid. On the facts before the Authority there were two valid applications and the claims by the wife were relevant to the risk assessment for the first applicant and vice versa, because they were a family unit and the Authority was aware of each of their claims because they had documents before it about each of them, but only those of the first applicant were considered.
Alternatively, if I am incorrect and the material relating to the wife’s application was not before the Authority, I am satisfied jurisdictional error is demonstrated consistent with the authority of EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20.
Ground 2
Having upheld ground 1 and 3, it is unnecessary to consider ground 2 in detail because counsel for the applicants in oral submissions acknowledged it had less prospects. Instead, rather than giving extensive reasons that would delay delivery of judgment, I prefer the submissions of the first respondent and am not satisfied that ground 2 of the amended application is made out. The Facebook posts provided by the first applicant were voluminous and not translated into English, contrary to the requirement of the relevant Practice Direction.[38] Accordingly, s 473FB(5) of the Act meant that there was no obligation to consider them. Further, I agree that there was no separate obligation to consider them as new information.[39]
[38] Exhibit R1, Court Book Vol 2, p 278 at [36].
[39] DHV16 v Minister for Immigration and Border Protection [2018] FCCA 349; (2018) 331 FLR 204; and DHJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 364.
Further, in relation to the first applicant’s submission about the headline to a Facebook post being in English,[40] the first applicant has failed to persuade me that it was not considered and if it was not considered, I agree that the failure was immaterial in the absence of further information or detail about the entirety of the Facebook post and its connection to his activity.
[40] Contended by the first respondent to be the headline at either p 107 or p 157 of Exhibit R2, Supplementary Court Book Vol 2.
CONCLUSION
For all of the reasons above and because grounds 1 and 3 are made out, the decision of the Authority is quashed and the review remitted for redetermination.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 30 August 2024
SCHEDULE OF PARTIES
SYG 1569 of 2021 Applicants
Fourth Applicant:
CUG21
0
25
3