Cuz17 v Minister for Immigration & Anor
[2019] FCCA 3074
•30 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUZ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3074 |
| Catchwords: MIGRATION – Protection visa – where grounds are unparticularised – whether Authority denied applicant procedural fairness – whether Authority failed to alert applicant to “new issues” and “get new information” – where procedural fairness does not require Authority to get new information about an issue that it found in the applicant’s favour – no error exposed in Authority’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 65, 425, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DF, 473GA, 473GB, 474, 474DD, 476 |
| Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 |
| Applicant: | CUZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1350 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 24 January 2019 |
| Date of Last Submission: | 24 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Tran |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 26 June 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1350 of 2017
| CUZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 26 June 2017, judicial review is sought of a decision of the Immigration Assessment Authority (Authority) made on 12 June 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(b) of the Migration Act 1958 (Cth) (Act).
Background
The applicant, a Sri Lankan national aged 37 years of Tamil ethnicity and Hindu religion first arrived in Australia in 2012 as an irregular maritime arrival. On 27 November 2015, the applicant applied for a temporary protection visa after having made an invalid application on 15 July 2013.
For the purposes of his visa application, the applicant provided a copy of an earlier statutory declaration made by him on 15 July 2013, some aspects of which he then corrected on 25 November 2015 for the purposes of his further application.
The applicant claimed to fear persecution because of his Tamil ethnicity, religion, age, his status as a failed asylum seeker, and his actual or imputed political opinion in favour of the Liberation Tigers of Tamil Ealam (LTTE). In particular, the applicant claimed that:
a)in 2004, he was involved in protests against restrictions on trade with Tamils and was interrogated by the Karuna Party about that participation;
b)in 2005, he became a member of the Tamil National Alliance and won election to local government;
c)when war broke out in 2006, the applicant was living in a LTTE controlled village which was bombed by the Sri Lankan Army. Afterwards, he moved to refugee camps, initially claiming to have published photos of what had occurred on Facebook;
d)in 2009, members of the Pillayan forcibly sought to recruit him to their political party;
e)in 2009, he was interrogated by the Sri Lankan Army about: his brother’s involvement with the LTTE and whether members of the LTTE had taken materials from the Sri Lankan Red Cross. He said that the army suspected he was helping the LTTE;
f)in 2010 and 2011, he campaigned for the Tamil Makkal Viduthalai Pulikal Party (TMVP) but lost on both occasions. The TMVP offered him a senior position but he refused, saying he wanted to join the Rural Development Society of which he was treasurer from April 2012;
g)in 2012, he declined requests by the Sri Lankan Army to recruit him to find former LTTE members.
On 13 October 2016, a delegate of the Minister refused the visa application. The delegate accepted some of the applicant’s claims, but ultimately found that there was not a real risk that he would suffer significant harm if he returned to Sri Lanka, and that he did not satisfy any of the criteria in s 36(2)(a) or s 36(2)(aa)of the Act
Authority’s decision
As the applicant was deemed to be a fast track applicant,[1] he was subject to the merits review framework and procedure set out in Part 7AA of the Act. The delegate’s decision was referred under Part 7AA to the Authority for a fast track review.
[1] Act, s 5(1).
On 31 October 2016, the Authority notified the applicant that the delegate’s decision had been referred to it for review. The applicant was provided a Practice Direction indicating the manner in which the Authority would conduct the review and steps which the applicant might take in the course of that review, including, by making submissions.
On 18 November 2016, the applicant’s representatives made written submissions to the Authority.
On 12 June 2017, the Authority affirmed the decision under review and provided a statement of reasons for its decision (Reasons).
The Authority considered the submission in circumstances where it concluded that it did not contain new information but advanced legal argument and discussed the basis for the delegate’s findings: [4].
The Authority accepted that the applicant and his family had been displaced as a consequence of the war, and that at an early stage in the war his father had been detained and mistreated due to his ethnicity: [14].The Authority did not accept that the applicant’s brother was a member of the LTTE; and for that reason it did not accept that the applicant had been questioned by the Sri Lankan Army in relation to his brother’s membership: [18]. It accepted that the applicant had “some engagement with the LTTE during the war but was not a member of the LTTE and had not engaged in any fighting on their behalf”: [20]. It also accepted that the applicant had attended protests during 2004 and 2005 but was “not satisfied … that he undertook a prominent role as a participant or as an organiser of these protests”: [21].
The Authority also accepted that the applicant had been elected to a position within the TNA, a position that he held for about six months: [21]-[24].It found that the applicant “was of limited interest to the Karuna members as a possible source of information about LTTE activities and was questioned as he has claimed”: [26]. However, the Authority did not accept that the applicant had a profile which would trigger adverse interest: [28].
The Authority accepted that the applicant had been mistreated by members of the Pillayan Group and that he agreed to campaign for the TMVP after questioning from the army and under duress, but it did not accept that the TMVP sought to continue to engage with him after his electoral losses: [31], [34].It also accepted that the applicant had been Treasurer for the Rural Development Society for a period of about 6 months but did not accept that he was, or perceived to be, influential in its decision-making: [35]
The Authority did not accept that the army had pursued or harassed the applicant beyond making an initial approach about his becoming an informer: [35], [38].It further found that the army would not have an ongoing interest in him due to “the passage of time since they first approached the applicant, the applicant’s low profile for LTTE involvement, and the absence of any information to indicate further enquiries have been made by them with the applicant’s family”: [39], [43]. Based principally on country information, the Authority found that the applicant would not face a real chance of serious harm on account of returning after having departed illegally from Sri Lanka: [41], [43]. The Authority also found that the applicant would not face significant harm upon return to Sri Lanka as a person who had departed illegally: [44]-[51]. For the same reasons, it found that the applicant was not entitled to complementary protection: [54]-[62].
Procedural history
On 26 June 2017, the applicant filed an application for judicial review of the Authority’s decision together with an affidavit to which he exhibited a copy of the Authority’s decision but which adduced no further evidence in support of his application.
By a Response filed on 7 August 2017, the Minister contended that the application for judicial review should be dismissed on the ground that the Authority’s decision was not affected by jurisdictional error.
On 21 February 2018, orders were made, by consent, that the application be listed for hearing. By this order, the applicant was afforded an opportunity to file an amended application, any additional grounds of review, together with any further affidavits and written submissions in support of their application. The applicant did not do so.
Consideration
If the Authority’s decision was a privative clause decision[2], it is not amenable to judicial review. An Authority’s decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[3] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Authority’s decision.[4] Whether it should do so is a separate issue.
[2] Act, s 474(2).
[3]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[4] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[5] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[5]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The applicant was self-represented before me and made submissions with the assistance of an interpreter. He said that he had come from a small village where he had become involved in politics because he had wanted to serve his people. The applicant stated that during the war he had gone to Dubai and then returned to his country, following which he encountered a deal of trouble with the Karuna. He also said he had established a stable life in Australia and expected proper justice. He said that he considered the Authority had not given him a proper chance. I have re-examined the Authority’s decision and the materials in the court book.
The applicant advanced two grounds of review each of which was based upon a want of procedural fairness in the manner in which the Authority conducted the review. In those circumstances it is convenient to examine Part 7AA of the Act and the process of review it provides.
Part 7AA of the Act concerns the subject Fast track review process in relation to certain protection visa applications and is arranged in 8 Divisions comprising ss 473BA-473J. Relevantly, the Minister must refer, as soon as is reasonably practicable after a decision is made, and the Authority must review, a fact track reviewable decision.[6] Section 473CB identifies the material that must be provided to the Authority.
[6] Act, ss 473CA, 473CC.
By Pt 7AA of the Act, the core function that is imposed on the Authority is to conduct the review a fast track reviewable decision: see s 473CC(1); cf Minister for Immigration and Citizenship v SZIAI.[7]
[7] (2009) 259 ALR 429, [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In contrast with a review under Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA is a mechanism of limited merits review.[8] Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority;[9] requires that the Authority should ordinarily conduct its review on the papers;[10] provides for the exceptional, and strictly circumscribed,[11] circumstances in which new information or documents may be sought or employed;[12] and authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.[13]
[8] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].
[9] Act, s 473DA.
[10] Act, s 473DB.
[11] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [31].
[12] Act, s 473DC-473DE.
[13] Act, s 473DF.
In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant.[14] The Authority may, but is under no duty to, get any documents or information that was not before the delegate.[15] Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.
[14] Act, s 473DB(1)(a)-(b).
[15] Act, s 473DC(1)-(2).
Nothing in Part 7AA otherwise constrains the application of the law respecting the duty of an administrative decision-maker to consider the claims and issues arising from the material that is before it and the issues that may arise from its own findings.[16] For that reason, the Authority must consider each articulated claim and each claim that clearly arises from the review material before it.[17]
[16]AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, [18]-[19] (Collier, McKerracher and Banks-Smith JJ).
[17]See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1, 19 [60] (Black CJ, French and Selway JJ).
For the same reason, the powers conferred on the Authority by Div 3 of Pt 7AA are so “conferred on the implied condition that they are to be exercised within the bounds of [legal] reasonableness.”[18]
[18]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ).
As concerns the exhaustive statement of the natural justice hearing rule, “no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme”: DBE16 v Minister for Immigration and Border Protection.[19] As stated above, Pt 7AA provides a mechanism of limited merits review.[20] In DBE16, Barker J held:[21]
The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 do not apply to reviews under Pt 7AA of the Migration Act. I note, without needing to interrogate the proposition further, that the Federal Circuit Court has accepted the proposition in such decisions as DZU16 v Minister for Immigration & Anor [2017] FCCA 851 at [101]; AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [11]-[12]).
His Honour held that “the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding”, and that to do so was part of the nature of the fast track system as envisaged by Pt 7AA.[22]
[19] [2017] FCA 942.
[20] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].
[21] [2017] FCA 942, [59].
[22] [2017] FCA 942, [61].
These statements of principle were endorsed by the Full Court in DGZ16 v Minister for Immigration and Border Protection.[23] There, Reeves, Robertson and Rangiah JJ held[24] that the scheme of review provided by Part 7AA, required that the Authority was to review for itself the material that had been considered by the delegate and did not require it to notify an applicant if it was considering taking a view of the matter different from that taken by the delegate. Their Honours agreed that:[25]
. . . the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
[23] [2018] FCAFC 12, [50], [70] (Reeves, Robertson and Rangiah JJ).
[24] [2018] FCAFC 12, [70], [73].
[25] [2018] FCAFC 12, [70], [74].
In DGZ16, the Full Court did not accept[26] on the facts of that case that “the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.” The Full Court concluded that there was no requirement in Pt 7AA, equivalent to s 425, which provided that “the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review” and that in general, “the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.”
[26] [2018] FCAFC 12, [75]-[76].
Upon the primary rule provided by Pt 7AA, the Authority is required to conduct a fast track review ‘on the papers’ and to do so by reference to the review material[27] that is provided by the Secretary and, save as to the strictly circumscribed exception afforded by s 473DD, is proscribed from considering new information[28] in conducting such review.[29]
[27] Act, ss 473BB, 473CB(1).
[28] Act, ss 473BB, 473DC(1).
[29]BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [33] citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [22]; Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534, [19].
Accordingly, in conducting a de novo review of a delegate’s decision, it is generally open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond or affording him or her an invitation or hearing: see also DPI17 v Minister for Home Affairs.[30]
[30] [2019] FCAFC 43, [35] (Griffiths and Steward JJ).
A referred applicant may provide a written statement on why they disagree with the decision under review and on any claim or matter which he or she presented to the Department that was overlooked.[31] Aside from the exhaustive statement of the natural justice hearing rule, the referred applicant is entitled to participate in that review.
[31]Act, s 473FB; Pt 7AA Practice Direction; see also, BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [34].
In an application for judicial review of a decision made by the Authority under Pt 7AA, the onus of demonstrating jurisdictional error lies upon the applicant who must, where relevant, establish the factual foundation for a finding on the balance of probabilities that the Authority failed to consider whether to exercise a power conferred by Pt 7AA.[32]
[32]BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [35] citing BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 11, [41].
I apply these principles in the present application.
As the Minister correctly submitted, there is a degree of overlap in the grounds of review each of which were framed by reference to procedural fairness. More recently, in BVD17 v Minister for Immigration and Border Protection[33] the plurality observed that the exhaustiveness of the rule of procedural fairness in Pt 7AA was more extensive than that stated in relation to Pt 7 in that it extended to the entirety of the performance of the Authority’s overriding duty to review a fast track reviewable decision.[34] In the result, the court held that having regard to the codifying (i.e. exhaustive) effect of s 473DA(1), except to the extent that it overlapped with legal unreasonableness, “procedural fairness analysis is not the ‘lens’ through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AAis to be determined.”[35] As the Full Court has stated repeatedly, and the High Court has confirmed, a challenge of the present kind is to be approached through the statutory framework of Div 3, Pt 7AA and upon principles of legal unreasonableness, not through a lens of procedural fairness.[36]
[33] [2019] HCA 34, [34].
[34] [2019] HCA 34, [31], [35] (plurality); cf [51], [62] (Edelman J).
[35][2019] HCA 34, [34], approving Minister for Immigration and Border Protection v CRY16 (2018) 253 FCR 475, [67]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 475, [99].
[36] Ibid.
Ground 1 reads:
[The Authority] denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the Applicant was not previously aware, and in the alternative [it] denied the Applicant procedural fairness because [it’s] reasoning departed from the Department’s reasoning, resulting in in (sic) a practical injustice to the Applicant.
Ground 2 reads:
[The Authority] constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant”.
Neither ground was amplified by any particulars.
At the outset, it is apparent from the discussion above that the analytical framework of procedural fairness under Pt 7AA is considerably different, and reduced in content, from the obligations of procedural fairness which apply under Pt 5 and Pt 7 of the Act respectively. Division 3 of Pt 7AA of the Act, together with ss 473GA and 473GB, constitute an exhaustive statement of the requirements of the hearing rule: s 473DA. In Minister for Immigration and Border Protection v CRY16, a Full Court stated that “in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness, rather than the principles of procedural fairness”.[37] I accept the Minister’s submission that there is nothing to suggest that these statutory provisions were contravened in this case.
[37] (2017) 253 FCR 475, [67] (the Court).
Insofar as the outcome of the appeal in CRY16 may be considered to be of assistance in the present case, I consider it is distinguishable. In CRY16 the court held that it was unreasonable in the circumstances of that case for the Authority not to consider exercising its discretionary power to obtain new information under s 473DC in respect of an issue that had not been explored in any way before the delegate but upon which the Authority was going to make a finding on in its decision.[38] In CRY16, the delegate had not accepted that the applicant held a well-founded fear of harm in Lebanon whereas the Authority had done so but proceeded to refuse the visa application on the basis that the applicant could relocate – an issue that had not been addressed at all to that point.
[38] (2017) 253 FCR 475, [82] (the Court).
The present case is distinguishable, because here the Authority:
a)did not venture out and consider or make a finding about an issue which had not been considered by the delegate; and
b)did not make any adverse finding on an issue about which the delegate had found in the applicant’s favour.
Contrastingly with CRY16, here on occasion (eg, in respect of the Rural Development Society), the Authority in fact made a finding favourable to the applicant whereas the delegate had made an unfavourable finding.
Neither principles of unreasonableness nor procedural fairness would require the Authority to get new information about an issue that it found in the applicant’s favour.
The present case may also be distinguished from CRY16 because there is nothing to suggest that the applicant had anything less than an adequate opportunity to put forward all that he wished in respect of the issues that were ultimately addressed by the Authority. He in fact did so and the Authority considered his submission: [4]. It may be noted that CRY16 has been distinguished on this basis on several occasions, including in later Full Court decisions.[39] Contextually, the Minister noted that in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598, McKerracher J had observed:
CRY16 does not establish that the IAA must consider the exercise of its discretionary powers to receive further information in every case where it reaches its conclusions for reasons which differ from the reasons of the delegate. In every case, the reasonableness of the IAA’s approach will be fact dependent.[40]
[39]See, eg, DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222, [68]-[71] (the Court); ASW17 v Minister for Home Affairs [2018] FCA 1815, [27], [43] (Collier J).
[40] [2018] FCA 1598, [44].
Finally, as concerned the second ground of review, the applicant has alleged that the Authority erred in failing to consider its discretion under s 473DC to get new information from him. The applicant has not indicated what new information the Authority ought to have obtained. I accept that without any particulars of this new information, the applicant cannot discharge his onus of demonstrating jurisdictional error.
Conclusion
From my re-examination of the Authority’s Reasons, I do not see any further basis on which it might be suggested that its decision is affected by jurisdictional error and ought be remitted for reconsideration. In particular, I do not consider that the decision was tainted by legal unreasonableness.
The application should be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 30 October 2019
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