CWG17 v Minister for Immigration

[2017] FCCA 3178

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWG17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3178

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a protection visa – failure of the Secretary to provide the Authority with the country information was a denial of procedural fairness under s 473CB of the Migration Act 1958 (Cth) – the country information was credible, relevant and significant – the Authority failed to take into account the psychologist report – the psychologist’s report was credible, relevant and significant information – the Authority was required to take it into account as a matter of procedural fairness in conducting the review – two jurisdictional errors – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.473CB, 473DC, 473DD, 476

Applicant: CWG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2037 of 2017

Judgment of: Judge Street

Hearing date: 15 December 2017

Date of Last Submission: 15 December 2017

Delivered at: Sydney

Delivered on: 15 December 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Hooper
HWL Ebsworth Lawyers

ORDERS

1. A writ in the nature of certiorari is issued calling up the record of the Immigration Assessment Authority and quashing the decision dated 31 May 2017.

2. A writ in the nature of mandamus is issued requiring the Immigration Assessment Authority to determine the review under Part 7AA of the Migration Act 1958 (Cth) according to law.

3. The first respondent pay the applicant’s filing costs in this Court and legal costs in the proceedings as taxed or agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2037 of 2017

CWG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA on 31 May 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil from the Batticaloa District, Eastern Province of Sri Lanka. On 7 February 2016, the applicant lodged a valid application for a Class XE, Subclass 790 Safe Haven Enterprise visa. On 27 October 2016, a delegate refused the grant of that visa.

Country information not provided to the Authority

1. Part of the material provided to the delegate in support of the applicant’s application by the applicant’s migration agent constituted country information annexed to an email dated 7 February 2016. The 23 pages of country information included material that was highlighted in relation to matters relating to the applicant’s claims. It is common ground that that country information was not provided by the Secretary to the Authority under s 473CB of the Act.

2. The Court is satisfied that the material is of a kind that can be described as credible, relevant and significant. The failure to provide the material that had been provided on behalf of the applicant to the delegate to the Authority constitutes a denial of procedural fairness which the Court is satisfied in the present case constitutes a jurisdictional error.

Failure by the Authority to take into account the psychologist’s report

1. Further, this is a case where submissions were provided to the Authority, and identified in the Authority’s reasons, in respect of the consideration of matters under s 473DD of the Act. The Authority’s reasons under s 473DD of the Act reflect a correct application of both limbs of s 473DD of the Act and carefully identify the submission material evaluated by the Authority as to whether it meets the relevant requirement of exceptional circumstances and whether the Authority should have regard to the same. 

2. No reference in that material is made to a psychologist’s report provided by the applicant’s migration representative on 29 November 2016 by email. The psychologist’s assessment report opines that the applicant has the Depression, Anxiety and Stress Scale 21 and the Personality Assessment Inventory. The report summarises the applicant’s background and identifies that the applicant was sent for clinical assessment only recently in relation to the timing of report.  The psychologist whose qualifications have been set out in the making of the report, described the applicant as a person presenting with symptoms that would meet the criteria of post-traumatic stress disorder (PTSD) and Adjustment disorder and Mixed anxiety and Depressed mood. The report includes a recommendation that the applicant be referred to an outpatient program for PTSD sufferers.

3. I reject the submission that the Authority in its reasons did not refer to the report because it was considered not relevant under s 473DC of the Act. I find that the Authority did not refer to the psychologist’s report because it was not taken into account and considered by the Authority.  I find that the psychologist’s report was significant, relevant and credible information that as a matter of procedural fairness the Authority was required to take into account in conducting the review.  The failure to do so constitutes a jurisdictional error. 

4. By reason of the two jurisdictional errors identified, this is an appropriate matter in which to grant the applicant relief.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  23 January 2018