DJF16 v Minister for Immigration

[2018] FCCA 1020

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJF16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1020

Catchwords:
MIGRATION – Protection Visa – whether Administration Appeals Tribunal’s decision affected by jurisdictional error – where no error established in decision – application dismissed.

Legislation:

Migration Act 1958 (Cth) Part 7AA, ss.36(2)(aa), 473CB(1)(c), 473DB(1), 473DD

Cases cited:

AUG17 v The Minister for Immigration [2017] FCCA 1874

SZAYG v Minister for Immigration [2005] FCA 90
The Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15

Applicant: DJF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1044 of 2016

Judgment of: Judge Egan

Hearing date: 9 March 2018

Date of Last Submission: 9 March 2018

Delivered at: Brisbane

Delivered on: 6 April 2018

REPRESENTATION

Counsel for the Applicant: Mr Barataraj

Counsel for the Respondents: Mr McGlade

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1044 of 2016

DJF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. I deliver my reasons in relation to the application to review the decision of the Immigration Assessment Authority (IAA) in this matter handed down on 24 October 2016.  At the outset, I note the appearance of Mr McGlade of Counsel instructed, as he is, by a solicitor from Clayton Utz.  Counsel who appeared at the hearing for the Applicant was Mr Barataraj.  He is not present today, but my Associate has handed to me an email sent by him to her on 5 April 2018 whereby he indicated that he had a prior appointment, and he asked if the judgment might be emailed to him.  There are no written reasons which I intend to hand down today, so he will have to access them by other means.

2. As indicated, the IAA (Immigration Assessment Authority) handed down its decision on 24 October 2016.  The Applicant had asked for a review of the decision of the delegate, which had earlier been handed down.  The application before me contained three grounds.  On the occasion that the matter proceeded before me on 23 March 2018, Mr Barataraj indicated that ground 3 was abandoned by him.  That ground read:  “The Tribunal failed to apply the complementary provisions correctly.”  Accordingly, ground 3 will not be addressed by me in these reasons.

3. As to ground 2, Mr Barataraj referred me to paragraph 9 of the Applicant’s submissions filed in the Registry.  Mr Barataraj conceded that the factual issues raised in paragraph 9 of those submissions were irrelevant to my considerations, because they were related to matters which were required to be considered by the delegate, and not by the IAA.  Accordingly, I will not consider those factual matters as part of these reasons.  That leaves the balance of the grounds for the application for review. 

4. The reasons of the IAA are set out on pages 6 to 15 inclusive of the Court book, a copy of which I have been provided.  My jurisdiction in relation to matters the subject of the current ground is by way of review in order to establish whether there has been any jurisdictional error on the part of the IAA in the consideration of the matters before it, and in the handing-down of its decision.  I refer to the helpful comments of Judge Driver in AUG17 v The Minister for Immigration [2017] FCCA 1874 at paragraphs 16 to 22 inclusive in that regard.

5. In particular, I also note the quote of Allsop J (as he then was) in SZAYG v Minister for Immigration [2005] FCA 90 where His Honour said:

   
   
   “The Migration Act and the Judiciary Act provide for judicial review of the Tribunal’s decision. That judicial review is the application that was brought to the Federal (Circuit) Court. It is important to understand that that application is not simply a rehearing of what was before the Tribunal. It is not hearing afresh the evidence to decide whether or not a visa should be given. It is a review by the Court of the decision of the Tribunal in order to ascertain whether the Tribunal has acted lawfully. That is sometimes expressed in the legal expression to ascertain whether the Tribunal has committed any jurisdictional error.”

6. The Applicant’s first ground of review is one whereby it is asserted that the Assessment Authority Member failed to take into consideration, cumulatively, the documents presented to the Authority in support of the application when making the decision.  The framing of the ground of review is ambiguous to say the least, and generally lacking in particularity.  It has been held in a number of decisions that that is a ground alone for dismissing an application, but, in any event, it is confusing.

7. Doing the best I can when seeking to understand what that ground of review is, it would appear to be asserted that the delegate and not the IAA fell into jurisdictional error by not considering particular documents cumulatively.  The documents in question are those set out between pages 26 to 28 inclusive and pages 31 to 33 inclusive of the Court book.  Those documents were described in the Applicant’s submissions as being two extracts from the information book of Kaluwanchikudy Police Station dated 20 November 2010 and 23 November 2010 respectively, together with a death certificate of the Applicant’s cousin dated 16 October 2008.

8. It was submitted by counsel for the First Respondent that there were a number of reasons why such assertion on the part of the Applicant was untenable.  I accept the submissions of counsel in that regard.  Firstly, there is clear evidence that the documents referred to were not before the delegate.  In that regard, the Court book makes it clear that the first attempt by the Applicant to put such documents before any decision-maker was on review before the IAA (pages 22-34 of the Court book).  It is trite that a decision-maker cannot fall into error by not considering documents that were not before them.

9. Secondly, I do not have power or jurisdiction to judicially review the delegate’s decision in that regard.  Thirdly, even if there was some jurisdictional error in connection with the delegate’s decision, that, of itself, could have no effect on the validity of the IAA’s decision or exercise of its jurisdiction.  That is because the application before this Court seeks to quash the decision of the IAA, not the delegate, in which case it is necessary to show that the decision, and not the delegate’s decision, was affected by jurisdictional error.

10. In this case, having reviewed the material, there is no basis to find that the IAA conducted its review contrary to any of the statutory requirements as contained in Part 7AA of the Migration Act 1958 (Cth) (“the Act”). Also, any error on the part of the delegate does not, as a matter of law, flow into or otherwise form part of the IAA’s decision. In any event, if the Applicant’s complaint is that the IAA did not consider the abovementioned documents, then such complaint is without merit. The IAA is only allowed to consider the “review material” pursuant to s.473DB(1) of the Act.

11. Review material refers to the documentation provided by the Secretary pursuant to s.473CB(1)(c) of the Act. The IAA could only consider such new information if it was satisfied that the requirements in section 473DD of the Act were met. In circumstances where the relevant material was not before the delegate (and where the documentation did not come into existence until after the matter was referred to the IAA) the documents the Applicant refers to were clearly not “review material” but rather constituted, only arguably, “new information”.

12. The IAA considered whether it was permissible for it to have regard to the additional documents as new information under s.473DD of the Act, in paragraphs 4 - 7 inclusive of its reasons, as set out on pages 7 and 8 of the Court book. Accordingly, there can be no suggestion that the IAA failed to properly consider relevant matters under s.473DD of the Act. There was, therefore, no evidence that it had committed any jurisdictional error in that regard.

13. Insofar as the Applicant’s outline otherwise complained about the delegate’s findings of fact, those findings go not to the question of any jurisdictional error on the part of the IAA, but rather seeks a merit review by this court of the decision of the delegate.  Insofar as such submissions are to that effect, they are without merit.  So, too, are complaints about the conduct of the hearing before the delegate relating to what questions were or were not asked of the Applicant, and the framing of such questions.

14. The IAA has no obligation to ask questions of an Applicant or ask questions in a particular way.  Only in rare and exceptional circumstances would such a general duty be imposed, and I refer to the reasons of the High Court in The Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at paragraph 1 in that regard.

15. The second ground of review is that the Member failed to consider the application under the complementary protection provisions when arriving at its decision that the Applicant did not have real fear in being arrested, detained and tortured on return to his homeland.  It would appear that that ground of review is directed to the actions and decisions of the delegate and not the IAA.  In any event, the delegate clearly did consider the complementary protection criteria as referred to in paragraphs 107 to 122 inclusive of the delegate’s reasons. 

16. Preceding that consideration is a heading as follows: “Part 4 – Complementary Protection Criterion Assessment – Paragraph 36(2)(aa) of the Act”. Before paragraph 108 of the delegate’s reasons, there appears a subheading “Significant Harm”. Before paragraph 119 of the delegate’s reasons, there appears the heading “Real Risk of Significant Harm”. Under that subheading, there is a further subheading “Are There Substantial Grounds for Believing That, as a Necessary and Foreseeable Consequence of Being Removed to a Receiving Country, There is a Real Risk the Non-Citizen Will Suffer the Harm? Paragraph 36(2)(aa) of the Act”.

17. Before paragraph 120 is a subheading “Finding”. The delegate then stated: “I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there is a real risk the Applicant will suffer significant harm as is required by section 36(2)(aa) of the Act. Therefore, the Applicant is not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.

18. Before paragraph 121 of the delegate’s reasons, there is a subheading “Finding on Complementary Protection Criterion”.  Paragraph 121 of the delegate’s reasons provides:  “I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Sri Lanka, there is a real risk the Applicant will suffer harm.”  It was then concluded that the Applicant was not a person in respect of whom Australia had protection obligations.

19. In any event, even if the delegate had not considered the complimentary protection criteria, this Court has no jurisdiction to make orders in respect of the delegate’s decision, and any error committed by the delegate would not have the consequential effect of infecting the IAAs decision with jurisdictional error.  I accordingly dismiss the application for review.  I also order that costs should follow the event.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 1 May 2018