DOR17 v Minister for Immigration
[2018] FCCA 3933
•13 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOR17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3933 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – did the Authority have power to make second decision in light of s.473EA(3) of the Migration Act 1958 (Cth) – whether the Authority erred by failing to properly consider claim – whether the Authority misconstrued a claim concerning a relative – failed asylum seeker – Authority had power to make second decision – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.473EA, pt.7AA |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 CLV16 v Minister for Immigration & Border Protection [2017] FCCA 1200 CLV16 v Minister for Immigration & Border Protection [2018] FCAFC 80 |
| Applicant: | DOR17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2510 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 13 December 2018 |
| Date of Last Submission: | 13 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2018 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 7 July 2017.
The first respondent pay the applicant’s costs fixed in the amount of $615 in respect of disbursements.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2510 of 2017
| DOR17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
There are two applications for judicial review before the Court. Each concerns a decision made by the Immigration Assessment Authority, both purporting to have been made in respect of the applicant before the Court.
The first decision made on 17 July 2017 (the July decision) did not however, address any of the applicant’s circumstances and none of his claims. It appears that what occurred is that the reasons for decision in another matter were accidentally uploaded into the Authority’s system by reference to the applicant’s IAA reference number.
When this mistake was realised, according to a note in evidence before the Court, that decision record was removed and the second decision was made by the Authority on 21 August 2017 (the August decision). That decision, on its face, did address the applicant’s claims and his circumstances.
The question arises as to whether, in light of s.473EA(3) of the Migration Act 1958 (Cth), the Authority had any power to make the August decision: that is, regardless of whether the first decision was, as clearly was the case, affected by jurisdictional error.
In CLV16 v Minister for Immigration & Border Protection [2017] FCCA 1200, Judge Street found that the Authority in similar circumstances had no power to make a second decision. However, on appeal the Full Court overturned his Honour’s judgment and found that if there was jurisdictional error in the first decision then, in spite of s.473EA(3), the Authority had the power, if not the duty, to make the second decision: CLV16 v Minister for Immigration & Border Protection [2018] FCAFC 80.
I am bound to apply the decision of the Full Court and the result will be, whilst the first decision must be set aside for reasons I will explain more fully later, the Authority nevertheless still had power to make the second decision.
The question remains however, whether the second decision was made according to law. That is the precise content of the second set of proceedings before me but the question also impacts upon the relief to be granted in respect of the first set of proceedings concerning the July decision.
That is because, if the second decision is not affected by jurisdictional error, then the Authority will have completed its duty to review the delegate’s decision and so there ought to be, or there can be no order in the nature of mandamus in the first proceeding. If, on the other hand, as contended by the applicant the second decision is affected by jurisdictional error, then the Authority’s duty remains unfulfilled and there will have to be an order by way of mandamus.
That said, it is necessary in order to understand the eventual outcome, to first explain briefly the applicant’s background and claims and then the Authority’s reasons in each of its decisions. I will then turn to the provisions of the relevant provisions of the Act and explain in a little more detail the decision of the Full Court in CLV16. Having done that, I will return to assess the grounds raised by the applicant in respect of the second decision.
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 28 October 2012. On 28 November 2016 he lodged an application for a protection visa. The claims that he made in support of that application are summarised at [7] of the August decision made by the Authority which I set out below:
· When the applicant was very young, his family fled Vanni for Vavuniya. They lived in a camp in Veppankulam, Vavuniya. The camp was under the control of the army.
· When the applicant was young, an army official threw a battery at him while he was picking mangoes. On another occasion, he was separated from a friend who was wearing a head covering.
· In 2006, the applicant was at home when the dog starting barking. He went outside to see who was there, and when he saw the army he ran back inside. The army officers saw him running, and came after him. They checked out the house and drew a gun on the applicant’s father, asking who had run away from them and gone into the house. His father told the army that the applicant was just a school kid, and they left.
· In 2007, three of the friends and neighbours the applicant was close to went missing. Their bodies were found with injuries. This made the applicant scared as he thought it could be retribution against the Tamils.
· In December 2007, the applicant’s family moved to Poonthoddam, Vavuniya. They lived in his uncle’s house, and the applicant worked at his uncle’s electronics shop.
· In 2008, someone close to where he lived with his uncle was shot.
· In 2009 or 2010, another one of the applicant’s uncles was living in a refugee camp in Vavuniya which accommodated people rounded up from an area where LTTE people lived. Once his uncle was released, he came to live with the applicant’s family. The army came to their house two or three times to talk to the uncle.
· The applicant did not know much about his uncle. The uncle had lost a leg during the war, but did not want to talk about it.
· This uncle from the camp moved to Trincomalee to live with his in-laws. The army went to see the uncle there.
· The army has asked the applicant’s mother about the applicant’s whereabouts.
· The applicant does not believe Tamils are safe in Sri Lanka. He also has fears because of his uncle’s links with the LTTE. Returned Tamil asylum seekers are arrested and detained. He would be arrested because he left illegally without a passport.
(Without alteration)
It will be necessary to bear those claims in mind when I come to the reasons for the decision purportedly made by the Authority in July.
On 12 May 2017 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. In light of the reasons for the delegate’s decision, and the circumstances including that the applicant had arrived as an unauthorised maritime arrival, the decision was referred to the Authority for review under pt.7AA of the Act. One of the provisions in pt.7AA, which I will return to, is s.473EA concerning the Tribunal’s decision and reasons for decision.
On 16 June 2016 the applicant made a submission to the Authority and on 17 July 2017 the Authority purported to make a decision to refuse to affirm the decision of the Delegate. A brief glance at the reasons for that decision, however reveals that the decision had nothing to do with the applicant. The applicant’s claims which were dealt with in that decision are set out in [6] of the decision, which I set out in full:
· The applicant was a supporter of the Tamil National Alliance (TNA) in Sri Lanka. He made addresses to the public in support of the party during the 2010 local elections.
· The applicant informally told his students about atrocities committed against Tamils by groups such as the Tamil Makkal Viduthalai Pulikal (TMVP) and encouraged them to pledge support for the TNA.
· Members of the TMVP found out about the applicant’s discussions. On 27 January 2010, representatives of the TMVP visited his home. The applicant hid under his bed, while his wife told them the applicant was at his mother’s house.
· The men visited the applicant’s home again two weeks later. He was asked why he was trying to influence his students. The applicant denied the allegations, and he was slapped. The applicant was warned not to teach anyone about government policies outside the scope of his employment. The men decided to leave the applicant alone when his wife and children were crying, but smashed the lights on his motor cycle.
· The applicant canvassed for the TNA during divisional elections in 2011. One of the candidates he was supporting was assassinated. The applicant was staying on and off at his aunt’s house to avoid the attention of the TMVP.
· On 26 July 2012, four unidentified armed men came to the applicant’s house and warned him about his support for the TNA. He was told he would be silenced if he did not stop immediately.
· The applicant was followed during daylight houses. He received threatening telephone calls, and unidentified people continued to visit his home asking his wife about his whereabouts.
· The applicant’s father in law died on 3 December 2011. He was able to speak Sinhalese, and would complain to the police on the applicant’s family’s behalf. After his death, the threats and harassment to the applicant’s family increased.
· Since the applicant left Sri Lanka, men have visited his house on two occasions looking for him.
· The applicant fears harm from the TMVP if he returns to Sri Lanka. Another supporter of the TNA who had experienced similar threats to the applicant was killed.
(Without alteration)
A comparison between those claims and the claims set out earlier in these reasons reveals that this decision had nothing to do with the applicant.
A file note dated 21 August 2017, contained at page 257 of Exhibit A, explained that the July decision was “taken to have not been made as the written statement of reasons uploaded to CMS was not the correct statement”. I infer that what occurred was a mere administrative error. No doubt under the pressure of dealing with many decisions, the reviewer or somebody in the staff of the Authority simply uploaded the wrong decision to the wrong file.
Given that the obligation of the Authority is to “review” the decision of the delegate and the content of such a review is, at the very least, to consider the claims and information relevant to that decision, then there is no question that the statement of reasons uploaded on 17 July 2017 did not constitute or evidence any proper review of the delegate’s decision in this case. Having taken the view expressed in the case note dated 21 August 2017 the Authority proceeded to make a further decision on 21 August 2017 in which it, on its face, addressed the applicant’s claims. The reasons for the Authority’s decision in that case are summarised at [7] and [8] of the first respondent’s submissions and I will adopt those for the purposes of this judgment:
7. The Authority considered whether the applicant was at risk of harm due to an imputed political opinion: [12]; CB 246. Whilst the Authority accepted most of the applicant’s account of having experienced encounters with the Sri Lankan Army when he was younger, and the applicant’s claim regarding his maternal uncle, it was not satisfied that such incidents were sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities: [14]-[20]; CB 246-247. It referred to the fact that the uncle, who had moved to Trincomalee now operated a pharmacy and was no longer of interest to the authorities: [16]; CB 246. The Authority took into account country information in arriving at its conclusion: [20]; CB 247.
8. The Authority considered whether the applicant was owed protection obligations for reasons of discrimination against him as a Tamil, and because he illegally departed Sri Lanka: [22]-[32]; CB 247-248. It also considered whether he would face harm on return as a failed asylum seeker: [33]-[37]; CB 248-249. The Authority was not satisfied the applicant was owed protection on any of these bases, or that the complementary protection criterion was met: [41]-[44]: CB 250.
The first question then, is whether in spite of the clear jurisdictional error in the first decision, the Authority had the power to make another decision as it did on 21 August. Section 473EA provides:
Immigration Assessment Authority's decision and written statement
Written statement of decision
(1) If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
How and when written decisions are taken to be made
(2) A decision on a review is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(3) The Immigration Assessment Authority has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
Return of documents etc.
(4) After the Immigration Assessment Authority makes the written statement, the Authority must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(5) The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a) a failure to record, under paragraph (1)(c), the day and time when the written statement was made; or
(b) a failure to comply with subsection (4).
(Emphasis in original)
The application of s.473EA to circumstances where an initial decision is clearly affected by jurisdictional error was considered by the Full Court, as I have noted, in CLV16. At [61] of that decision, the Full Court explained the general principle:
... that a decision ostensibly made pursuant to statutory authority but which is made either in excess of the authority conferred or as not constituting an exercise of that authority may be regarded in law as a decision vitiated by jurisdictional error and as “no decision at all” ...
(Emphasis in original, citation omitted)
This was the principle explained by the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Later in its reasons, the Full Court then considered whether that general principle was affected by the operation of s.473EA. It noted the contention before it that in circumstances that there was jurisdictional error that provision meant that the Authority had no power to reopen that decision and that the second decision itself was beyond power. Those contentions were both rejected. The reasons for that rejection were set out in [68] to [71]:
[68] Section 473EA(2) does not operate such that a deliberation of the Authority which is set forth in a “written statement” that meets the requirements of s 473EA(1) is taken to be, or is “deemed” to be, a “decision” for the purposes of s 473EA. There is nothing in the terms of s 473EA(2) which displaces the normal position as established in Bhardwaj. A provision such as s 473EA(2) may well serve no “higher purpose” than simply “giving precision to what is to be the date of the decision”: cf. Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 at [44], (2012) 206 FCR 25 at 34 per Logan J (Barker J agreeing). The phrase employed in s 473EA(2), “taken to have been made”, says nothing with respect to whether such a decision is one susceptible of being “re-opened”. The phrase does nothing other than give content to how a decision is to be made (as a matter of form) and when it has been made.
[69] Nor does s 473EA(3) dictate any contrary conclusion. Section 473EA(3) simply provides that a “decision” once made cannot be varied or revoked by the Authority. Left unanswered by that sub-section is that which constitutes such a “decision” upon which s 473EA(3) operates. Again, there is nothing in s 473EA(3) which can be relied upon as supporting the proposition that a “decision” made in excess of jurisdiction – or a “decision” made without the Authority having discharged the statutory responsibility entrusted to it by s 473CC to conduct a “review” – is taken to be a “decision” within the meaning and for the purposes of s 473EA(3). And, notwithstanding the difference of views expressed in BMB16 as to the nature of the “review” to be undertaken for the purposes of the “limited form of review” provided for in Pt 7AA, none of the views there expressed provide any support for a proposition that any exercise of the power conferred by s 473CC could give rise to a “decision on a review” (s 473EA(2)) without undertaking such a “review”. Such a “review” includes entertaining a submission which has been made, including a submission that the Authority should consider “new information” pursuant to s 473DD. A purported “decision”, which fell short of considering such a submission, would not constitute a “decision on a review”.
[70] Section 473EA(2) and (3), it may be noted, are expressed in substantially the same terms as s 430(2) and (2A). But the comparison takes the analysis of the term “decision” no further.
[71] If any Parliamentary intent is to be discerned that a “decision” made by a statutory decision-maker without having discharged the statutory tasks required to be undertaken is to be a “decision” notwithstanding such a fundamental jurisdictional error, much clearer words are required than can be found within s 473EA(2) and/or (3). To clothe a “decision” with the character of one that cannot be revisited in circumstances where it becomes manifestly apparent that the statutory responsibility of conducting a “review” has not been undertaken, much clearer statutory language is called for. The uncertain process of statutory construction advanced on behalf of Applicant AHT17 which initially assumed the conclusion he sought to advance, and thereafter contended that the assumption was correct, only has to be stated to be rejected.
(Without alteration)
My conclusion that the July decision was no decision at all leads to the conclusion, in light of CLV16, that the Authority did have power to make the August decision. The remaining question is whether, in the purported exercise of that power, the Authority fell into jurisdictional error.
As I have said, the reasons for the August decision make it plain, on its face, that the applicant’s claims were considered. There are four grounds in the applicant’s application and he contests that his claims were not properly considered. In his first ground, the applicant says that the Authority failed to properly consider the claim concerning the fact that the applicant’s friends were brutally beaten. He says that the incident should be considered as a real reason for the applicant’s fear of persecution and that the Authority did not take into consideration the seriousness of the matter and failed to give it weight.
As I have noted from the summary of the Authority’s findings, the Authority actually accepted most of the applicant’s claims. In particular, I note that the claim concerning three neighbours of the applicant were set out in [7] and expressly dealt with at [15] of the Authority’s reasons. Now, with the acceptance of that claim in and of itself, does not mean that the Authority had to then accept that the applicant was a refugee.
Although past facts can be a guide to what might occur in the future they are not determinative of it and the Authority must necessarily make a decision about what might occur in the future. It did so in this case, essentially by reference to information that it had before it concerning the then current circumstances in Sri Lanka. I emphasise the then current circumstances, because in his oral submissions today the applicant noted that the circumstances in Sri Lanka had, in fact, changed since the Authority’s decision. I accept that submission as a matter of general knowledge.
However, the change in circumstances since the Authority’s decision does not affect the justification that the Authority had for making its decision at that time. It was only able to act on the credible information that it had before it that related to the circumstances that prevailed at that time. There appears to have been no suggestion in that information that the circumstances that have recently taken place in Sri Lanka might occur. For those reasons, contrary to the suggestion in the first ground, I am satisfied that the Authority did properly deal with the claim concerning the harm to the applicant’s neighbours or friends.
The second ground makes a similar complaint. It concerns the claim that the applicant’s neighbour went missing and the body was later found with severe injuries and the contention that that might have been as a result of retribution taken against Tamils and further, that the Authority failed to give consideration to the applicant’s fear in fleeing the country by illegal means. What, in fact, the applicant is saying in this ground is that there were other reasons why the Authority ought to have accepted that those events justify the conclusion that there was a well-founded fear of persecution. In other words, that the Authority should have made a different finding of fact.
However, the limits of this Court’s jurisdiction prevent me determining that question. It is well-established that a wrong finding of fact itself does not necessarily amount to jurisdictional error and that courts cannot enter into the merits of a decision-maker’s decision: see Attorney-General (NSW) v Quin (1990) 170 CLR 1; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The second ground must be rejected.
The third ground is that the Authority misconstrued the applicant’s claim about his uncle’s involvement in the LTTE. The Authority dealt with this claim at [16] of its reasons. As that paragraph reveals, the Authority reached its conclusion about the uncle on the basis of the applicant’s own evidence, namely, that the applicant’s uncle had moved to a different part of Sri Lanka and had been able to open up a pharmacy business without any issues. It was logical for the Authority to infer from that evidence that the uncle had, in fact, no further ongoing difficulties with the authorities and, as a consequence, that the applicant would not have any difficulties because of his uncle’s difficulties. For that reason, the third ground has to be rejected.
The fourth ground takes issue with the Authority’s findings concerning the claim that the applicant feared harm as a failed asylum seeker. However, the ground appears to simply repeat the applicant’s claims in that respect and on proper construction, simply takes issue with the merits of the Authority’s consideration of that issue. The Authority dealt with the failed asylum-seeker claim at [33] to [37] of its reasons. Having read those paragraphs, I can see no error in the way the Authority proceeded. For those reasons, none of the grounds in the applicant’s application succeeds.
As I have observed, the applicant made oral submissions today. He largely said that he faced persecution if he were to return to Sri Lanka. Once again, however, that is a matter that concerns the merits of the Authority’s decision and is something that the Court cannot engage with. For those reasons, I conclude first, that the July decision was affected by jurisdictional error; secondly, in light of CLV16 that the Authority had the power to make a second decision; and thirdly, that the second decision made on 21 August 2017 was not affected by jurisdictional error.
Conclusion
For those reasons, I order that a writ in the nature of certiorari issue quashing the decision of the Authority made on 17 July 2017 and that there be no order as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 18 January 2019
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