DFP16 v Minister for Immigration - [2018] FCCA 1586

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFP16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1586

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether the Immigration Assessment Authority’s decision was affected by jurisdictional error – whether the Immigration Assessment Authority failed to consider all claims before it – whether the Immigration Assessment Authority misconstrued the material before it – whether the Immigration Assessment Authority’s decision was unreasonable – whether the Immigration Assessment Authority correctly applied s.473DD of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 5H, 5J, 31, 36, 65, 473BA, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD
Migration Regulations 1994 (Cth), reg.2.01, sch.1

Treaties:
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), art.1A.
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

First Applicant:

DFP16

Second Applicant:

DFQ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2967 of 2016

Judgment of:

Judge Emmett

Hearing date:

13 June 2018

Date of Last Submission:

13 June 2018

Delivered at:

Sydney

Delivered on:

27 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Philip Santucci

Solicitors for the Applicant:

King & Wood Mallesons

Counsel for the Respondents:

Mr Tim Reilly

Solicitors for the Respondents:

Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2967 of 2016

DFP16

First Applicant

DFQ16
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1586
Decision Date: 27 June 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by the Minister for Immigration, concerning the applicant, DFP16. The dispute centred on the process by which the Immigration Assessment Authority (IAA) reviewed certain decisions to refuse protection visas, specifically those classified as "fast track reviewable decisions" under Part 7AA of the Act. The application was heard by Judge Emmett.

The court was required to determine whether the IAA's review process, as established by the Act, complied with the requirements of natural justice, particularly in light of the provisions of section 473DA which stated that Division 3 of Part 7AA, along with sections 473GA and 473GB, constituted an exhaustive statement of the natural justice hearing rule for IAA reviews. A key issue was whether the IAA was obliged to provide the applicant with all material that was before the Minister when the original decision was made, notwithstanding the exhaustive statement of natural justice rules.

Judge Emmett reasoned that section 473DA(2) explicitly stated that nothing in Part 7AA required the IAA to give to a referred applicant any material that was before the Minister when the original decision was made. This provision was interpreted as an exhaustive statement of the natural justice hearing rule in the context of IAA reviews, meaning that the IAA was not required to provide such material. The court noted that section 473CB outlined the specific material that the Secretary must provide to the IAA for review, and this did not include an obligation to provide the applicant with all material considered by the Minister. The court applied the principle that where a statute provides an exhaustive statement of a particular rule, that statement is to be taken as definitive.

Orders

Orders of the court

Full text does not contain this section.

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

Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:“Simplified outline of this PartThis Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants. Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants. …” Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:“Material to be provided to Immigration Assessment Authority(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:(a) a statement that:(i) sets out the findings of fact made by the person who made the decision; and(ii) refers to the evidence on which those findings were based; and(iii) gives the reasons for the decision;(b) material provided by the referred applicant to the person making the decision before the decision was made;(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;(d) the following details:(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

Ratio Decidendi

Legal Principle Established

Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:“Material to be provided to Immigration Assessment Authority(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:(a) a statement that:(i) sets out the findings of fact made by the person who made the decision; and(ii) refers to the evidence on which those findings were based; and(iii) gives the reasons for the decision;(b) material provided by the referred applicant to the person making the decision before the decision was made;(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;(d) the following details:(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.” Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration. The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:“Exhaustive statement of natural justice hearing rule(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”