CXG16 v Minister for Immigration

[2019] FCCA 2413

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXG16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2413

Catchwords:
MIGRATION – Judicial review – whether the Immigration Assessment Authority failed to lawfully construe and apply s.473DD of the Migration Act 1958 – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 473DD, 476

Cases cited:

AGA16 v Minister of Immigration and Border Protection [2018] FCA 628

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Tichner v Chapman [1995] FCA 1726

Applicant: CXG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2164 of 2016

Judgment of: Judge Obradovic

Hearing date: 6 September 2018

Date of Last Submission: 6 September 2018

Delivered at: Parramatta

Delivered on: 3 September 2019

REPRESENTATION

Counsel for the Applicant: Ms Symons

Solicitors for the Applicant: Legal Aid Victoria

Counsel for the Respondents: Mr Solomon-Bridge

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue, quashing the decision of the second respondent (Authority) dated 12 September 2016 to affirm the decision of a delegate (delegate’s decision) of the first respondent (Minister) to refuse to grant the applicant a protection visa.

2. A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the application referred to it by the Minister under s.473C of the Migration Act 1958 (Cth) for review of the delegate’s decision.

3. A writ of prohibition issue, prohibiting the Minister and his delegates, servants and agents from acting upon or giving effect to the Authority decision.

4. The Minister pay the applicant’s costs as agreed or assessed.

5. The matter is removed from the list of cases awaiting finalisation.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2164 of 2016

CXG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These are reasons for judgment in respect of an application for Constitutional writs pursuant to s 476 of the Migration Act 1958 (Cth) (“Act”). The application relates to the decision of the Immigration Assessment Authority (“Authority”) to affirm a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a Safe Haven Enterprise Visa (class XE) (subclass 790) (“visa”) on 12 September 2016 .

2. The applicant challenges that decision on the ground that the Authority constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by failing to lawfully construe and apply s 473DD of the Act.

The Authority’s Decision

1. The applicant arrived in Australia on 13 October 2012 as an unauthorised maritime arrival. He participated in an entry interview on 20 October 2012, and was subsequently invited by the Minister to make an application for a visa. He did so on 7 October 2015. On 8 December 2015, the applicant participated in an interview to discuss his visa application.

2. In his application, the applicant claimed that:

   a)He (and his family) are of Bidoon ethnicity;

   b)He was born in Kuwait, but due to their Bidoon ethnicity he and his family had been expelled to Iraq after the Gulf War;

   c)He grew up in the border areas of Kuwait and Iraq and that at some time during his teenage years, his father had sent him to live in Lebanon, in the hope that he would have a better life. He remained in Lebanon until a decision was made by his father to send him to Australia;

   d)As a stateless Bidoon, he was not recognised as a citizen by either the Kuwaiti or Iraq governments. Consequently he had no right to return to either country; and

   e)If he was to return to either Iraq or Kuwait, he would face the same denial of rights he faced whilst growing up, including the inability to work and to buy property and the fear that he would be apprehended and detained by authorities on account of his undocumented status.

3. By a decision dated 3 August 2016, a delegate of the Minister found that the applicant was not a person to whom Australia owed protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act. The delegate refused to grant the applicant the visa.

4. The reasons for the delegates decision were that:

   a)The applicant was not a stateless Bidoon as claimed but that rather, he and his family had been granted citizenship of Iraq under the government of Saddam Hussein; and

   b)The applicant did not face a real chance of persecution on the basis of his claim to be stateless, nor on his Bidoon ethnicity or his Shia religion.

5. By reason of the timing of his arrival in Australia and his status as an “unauthorised maritime arrival”, the applicant is a person deemed to be a “fast track applicant” pursuant to s 5(1) of the Act and therefore subject to the merits review framework and procedure that is set out in Part 7AA of the Act. Accordingly, on 4 August 2016 the Department referred the adverse decision of the delegate to the Authority for review.

6. On 5 September 2016, the applicant’s representative provided a brief written submission to the Authority (“submission”) and a statutory declaration of the applicant of the same date (“statutory declaration”).

7. The submission invited the Authority to consider the information contained in the applicant’s statutory declaration on the basis that it was directed at the issue of the applicant’s citizenship, which issue, on the representative’s submission, had not been identified to the applicant, either in writing or during the protection visa interview.

8. The representative made the further submission that the information contained in the statutory declaration was credible, personal information not previously known to the applicant as it was largely drawn from recent conversations with the applicant’s father and could not have been provided before the decision was made as it was information obtained from the applicant’s father after that time.

9. On 12 September 2016, the Authority made a decision by which it affirmed the decision of the delegate not to grant the applicant the visa. The Authority in its reasons for decision purported first to deal with the submission. The Authority concluded that it was unable to consider any “new information” because it was not satisfied that there were exceptional circumstances to justify its consideration.

10. In relation to the applicant’s substantive claims for protection, the Authority accepted that the applicant was of Bidoon ethnicity and had been born in, and later expelled from, Kuwait with his family such that he did not have Kuwaiti nationality. However, the Authority rejected the applicant’s claim to be stateless, but found instead that the applicant was a national of Iraq. The Authority rejected all of the applicant’s protection claims.

s473DD Argument

1. There is but one discrete issue for determination in this application, and that is whether the Authority failed to lawfully construe and apply s473DD of the Act thus falling into jurisdictional error.

2. Section 473DD of the Act governs the circumstances in which the Authority may consider new information put forward by a referred applicant. It provides:

   Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   a. the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   b. the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   i. was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   ii. it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

3. The Authority’s consideration and application of s473DD of the Act in respect of the submission and statutory declaration is set out at [5]-[14] of the Authority’s written reasons. The reasons reveal that:

   a)The Authority concluded that it was unable to consider any new information contained in the submission or statutory declaration[1];

   b)The Authority identified s473DD as requiring that it must not consider any new information unless it was satisfied that there were exceptional circumstances to justify considering the new information[2];

   c)The Authority identified some of the information contained in the submission and the statutory declaration. The Authority noted that it included:

   “details of new claims based on recent conversations between the applicant and his father”[3] and that “the applicant states that he is certain that the passport he used to depart Iraq was fraudulently obtained”[4];

   d)The Authority found that the applicant was given a sufficient opportunity to provide information to support his claims regarding fears of any harm in Iraq and that he was aware of the need to provide all information regarding his claims prior to the delegate making his decision[5];

   e)The Authority was satisfied that the applicant was on notice that his nationality (including that he held an Iraqi passport) was at issue before the delegate, and that he was provided with the opportunity to present his case in support of that claim[6]; and

   f)It was for these reasons that the Authority was not satisfied that there were exceptional circumstances to justify the consideration of the new information.[7]

   [1] CB 223 at [5]

   [2] CB 233 at [6]

   [3] CB 233 at [8]

   [4] CB 224 at [14]

   [5] CB 233 at [11]

   [6] CB 233 at [12]

   [7] CB 233 at [13]

4. It is important to set out in some detail the relevant paragraphs of the submission:

   1. The contents of [the applicant’s] … statutory declaration are (sic) should be considered because it is made in response to the finding in the decision that [the applicant]… is an Iraqi citizen (which [the applicant]… disputes). We submit that [the applicant]… was not put on notice of this potential finding or issue before the decision was made, either in writing or at the interview for his application. We submit that this amounts to an exceptional circumstance, being a significant denial of procedural fairness to [the applicant]…

   2. We also submit that the information provided in this statutory declaration:

   a. is credible, personal information not previously known to [the applicant]… as it is largely drawn from recent conversations with his father; and

   b. could not have been provided before the decision was made as it is information obtained from [the applicant’s]… father after that time.

   3. Accordingly, we submit you are not barred from considering this information by s473DD of the Act and should consider the contents of this statutory declaration in assessing the review of the decision.

5. It is clear that on a fair reading of the submission the applicant made to the Authority, that while it was submitted that there were exceptional circumstances warranting the Authority considering the new information because the applicant had been denied procedural fairness, it was also submitted, using in part the language of s473DD that the information also satisfied one, if not both, of subsections (b).

6. The Authority did not consider the matters in s473DD(b)(i) or (ii), notwithstanding the submission made to the Authority that the information was credible and personal information not previously known to the applicant and that it was information which was not available at the time of the delegate’s decision.

7. While s473DD(b) does not codify what constitutes “exceptional circumstances”, and there is no requirement for the Authority to consider the factors in s473DD(b)(i) and (ii) in deciding whether there are “exceptional circumstances”, in many cases a consideration of these factors may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances do exist.[8]

   [8] AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14]

8. In circumstances where the High Court has made clear that what will amount to exceptional circumstances is inherently incapable of exhaustive statement[9] and where the Full Court of the Federal Court has held that whilst the requirements of subparagraphs (a) and (b) of s473DD are cumulative, they may nevertheless overlap with the effect that the Authority’s consideration of either or both of the limbs in subparagraph (b) may inform the Authority’s satisfaction under subparagraph (a) as to whether there are exceptional circumstances to justify considering the new information[10], it is improbable that the Authority could have been satisfied, by reference to the procedural fairness matter only, that the applicant’s circumstances were not exceptional. The Authority was obliged to consider all relevant circumstances.[11]

   [9] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

   [10] Minster for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]

   [11] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [51]

9. It is clear from the Authority’s reasons that the s473DD(a) requirement that there be exceptional circumstances was satisfied solely upon an evaluation and finding by the Authority that the applicant had a sufficient opportunity to provide information of the kind now sought to be provided and that the applicant had been on notice as to the issues to which the information was directed.

10. The Court accepts the applicant’s submission that the focus by the Authority on these two matters had the consequence that the Authority failed to give consideration to all of the relevant circumstances in purporting to make an assessment as to whether there were exceptional circumstances to justify considering the new information.

11. The Authority adopted an overly narrow interpretation of the expression “exceptional circumstances” and failed to consider the applicant’s submissions in a broader context. The Authority’s reasons do not show any real consideration in the sense of an “active intellectual process” directed at the material.[12] The reasons of the Authority, while accepting that they “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”[13], are in respect to the procedural fairness deliberation, quite detailed.

    [12] Tichner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462-3; AGA16 v MIBP [2018] FCA 628 at [31]

    [13] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 at 272

12. It was incumbent on the Authority to conceive of “exceptional circumstance” more broadly than it did. In the circumstances of this case, what was relevant to the determination of “exceptional circumstance” included more than just the inquiry about whether the applicant had been on notice about particular matters, that is whether there had been a denial of procedural fairness. This is so because of the critical findings which the delegate made, because of the nature of the new information and the nature of the information that was before the Authority, and because the applicant, through his legal representative, raised particular matters in the submission to the Authority.

13. In the circumstances of this case, the Authority needed to turn its mind to the matters in subparagraph (b) and in particular whether the new information was credible, personal information which was previously not known, and had it been known, whether it may have affected the consideration of the applicant’s claims. There was no consideration of whether the new information fitted within the claims that had been made, what its capacity was to inform those claims and its capacity to inform the Authority’s consideration of those claims.

14. Jurisdictional error has therefore been made out.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 3 September 2019