DJH17 v Minister for Immigration

[2019] FCCA 1245

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJH17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1245

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority was required to take into account and consider submissions and new information provided by the applicant – further amended application allowed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: DJH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 308 of 2017

Judgment of: Judge Street

Hearing date: 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Adelaide

Delivered on: 21 March 2019

REPRESENTATION

Counsel for the Applicant: Mr P Barnes

Solicitors for the Applicant: Michael Opacic Solicitor

Solicitors for the Respondents: Ms A Ladhams
Australian Government Solicitor

ORDERS

1. A writ in the nature of certiorari is issued calling up the record of the Immigration Assessment Authority and quashing the decision made on 13 July 2017.

2. A writ in the nature of mandamus is issued requiring the Immigration Assessment Authority to determine the review application for a Temporary Protection (Class XD) visa before it according to law.

3. The first respondent the applicant’s costs fixed in the sum of SEVEN THOUSAND FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7467).

DATE OF ORDER: 21 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 308 of 2017

DJH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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”) under Part 7AA of the Act made on 13 July 2017, affirming a decision of the delegate not to grant the applicant a Temporary Protection visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. These proceedings were commenced on 26 July 2017. Orders were made by a Registrar for the filing of an amended application, affidavit evidence and submissions, as well as for the Court Book. The Court book was in fact filed on 8 September 2017. There were three orders in total giving the applicant an opportunity to put on an amended application. An amended application was filed on 15 March 2019.

3. Following the filing of that amended application, on 19 March 2019, the Minister filed an affidavit, consistent with the Minister’s obligation as a model litigant, identifying that it appeared from the material before the Minister that the document that appears at page 142 of the Court Book was not in fact a document that had been received by the Authority, and identifying that what had been received by the Authority was only the email identified of 13 December 2016. The affidavit identified communications with the Authority and the applicant’s representative in respect of submissions that the representative clearly thought the Authority had received.

4. It was on 26 October 2016, that the delegate found the applicant failed to meet the criteria for the grant of the Temporary Protection visa. 

5. The Authority wrote to the applicant on 31 October 2016, giving the applicant an opportunity to put on new information and submissions. It is in response to that letter that the document at page 142 in the Court Book was clearly sent on behalf of the applicant, annexing a large number of documents in furtherance of the applicant’s claims. It is common ground that those documents, contrary to what appears in the Court Book, were not in fact before the Authority and accordingly were not taken into account by the Authority.

6. Ms Ladhams, solicitor on behalf of the first respondent, contended that because the material was not before the Authority it cannot give rise to any relevant jurisdictional error.

7. Where the Authority has written to the applicant giving the applicant an opportunity to put on submissions, and the Authority does not then take into account the submissions or material that has been provided, or have a real or meaningful engagement with the same, there is a constructive failure to exercise the jurisdiction of the Authority. It is clear from the concession made by the first respondent that there has been a constructive failure by the second respondent to exercise its jurisdiction, where it has not taken into account a submission that was sent in response to the letter of 31 October 2016.

8. Ms Ladhams' proposition that it was not received by the Authority goes nowhere in circumstances where it is clear, from the affidavit that has been filed on behalf of the Minister, that the Authority was aware that there had been a communication sent, endeavouring to provide the Authority with the submissions on behalf of the applicant. It is not sufficient to point to the email of 13 December 2017 and contend that the Authority was, in those circumstances, engaging with the content of that email and that there was no relevant jurisdictional error.

9. Once the Authority engaged in the process of the sending of the letter of 31 October 2016, it was a necessary function in the exercise of the Authority’s statutory function of review to take into account and consider submissions and new information provided by the applicant.  The fact that the submissions in the present case, and supporting documents, of 5 December 2016, were sent to the Department and not the Authority does not give rise to circumstances that mean there was not a constructive failure by the Authority to exercise its jurisdiction, because it is apparent the Authority was aware of the fact of the sending of the communications at that earlier time. Accordingly, the failure to consider the submissions reflects a constructive failure by the Authority to properly exercise its jurisdiction, constituting a jurisdictional error.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019