DTP17 v Minister for Immigration
[2019] FCCA 10
•21 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTP17 v MINISTER FOR IMMIGRATION & ORS | [2019] FCCA 10 |
| Catchwords: MIGRATION – Review of decision of a delegate of the Minister to seize a document as bogus and review of a decision of the Immigration Assessment Authority to refuse a protection visa – consideration of the Court’s jurisdiction to review the decision to seize the document and the anterior decision that the document was bogus – seizure decision conceded as affected by jurisdictional error – Authority decision free of jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.2, 15C Commonwealth Constitution 1901 (Cth), s.75 Federal Circuit Court of Australia Act 1999 (Cth), ss.10, 15, 16 Migration Act 1958 (Cth), ss.5, 5AA, 5J, 51A, 36, 46A, 57, 65, 68, 91W, 357A, 360, 422B, 425, 473BB, 473CA, 473DA, 473GA, 473GB, 474, 476, 477, 487J 487ZI, 487ZJ, 487ZK |
| Cases cited: AGG17 v Commonwealth of Australia [2018] FCA 242 ALV16 v Minister for Immigration & Anor [2018] FCCA 626 Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 AXE16 v Minister for Immigration [2018] FCA 646 BJB16 v Minister for Immigration [2018] FCAFC 49 Buck v Bavone (1976) 135 CLR 110 BVD17 v Minister for Immigration [2018] FCAFC 114 CHM16 v Minister for Immigration [2018] FCA 1132 CID15 v Minister for Immigration [2017] FCA 780 CRJ17 v Minister for Immigration [2018] FCA 1404 DBE16 v Minister for Immigration [2017] FCA 942 DGZ16 v Minister for Immigration [2018] FCAFC 12 DVY17 v Minister for Immigration [2018] FCCA 3239 Minister for Immigration v DZU16 (2018) 253 FCR 526 Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594 |
| Applicant: | DTP17 |
| First Respondent: | COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | HAKAN HONEINE |
| Third Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Fourth Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2307 of 2017 |
| Judgment of: | Judge Driver |
| Hearing dates: | 19 November, 19 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr V Kline |
| Counsel for the First and Third Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ of certiorari shall issue, removing into this Court the record of the delegate’s decision made on 27 April 2017 to seize the applicant’s identity card, for the purpose of quashing it.
In the event that no fresh decision to seize the identity card is made within 21 days, the Minister is to return the card to the applicant as soon as practicable thereafter.
The application as amended on 19 June 2018 is otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2307 of 2017
| DTP17 |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
First Respondent
HAKAN HONEINE
Second Respondent
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Third Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Fourth Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of two decisions. The first is a decision made by an officer[1] under a delegation from the Minister (delegate) to seize a document that, purportedly, he reasonably suspected had been forfeited to the Commonwealth. The second is a decision made by the Immigration Assessment Authority (Authority) to affirm a decision of the delegate[2] not to grant the applicant a protection visa.
[1] Hakan Honeine
[2] also Mr Honeine
The applicant required an extension of time to review the first decision, which was made on 27 April 2017.[3] The judicial review application was originally lodged on 21 July 2017. I granted the extension of time sought under s.477(2) of the Migration Act 1958 (Cth) (Migration Act) on 19 November 2018, up to the date of lodgement for filing of the application in its final form.[4] The second decision was made by the Authority on 1 September 2017 and the judicial review application was amended to seek review of it subsequently.
[3] see DVY17 v Minister for Immigration [2018] FCCA 3239
[4] the application in that form was filed the following day
The Commonwealth is a respondent to the application, consistently with s.487ZJ(3)(d) of the Migration Act, which, when read with s.487ZK(1) nominates the Commonwealth as the proper respondent in respect of the first decision. Although Mr Honeine had been joined as the second respondent to the application as amended, the Minister sought his removal on the basis that the proper respondent is the Commonwealth in respect of the first decision. I have not made that order as, in my view, the proceeding in respect of the first decision was in essence an application for judicial review of Mr Honeine’s decision.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iraq. He entered Australia at Christmas Island as an “unauthorised maritime arrival” (as that phrase is defined in s.5AA of the Migration Act) on 14 March 2013.[5]
[5] Court Book (CB) 131
On 8 February 2016, the Minister’s Department (Department) wrote to the applicant to advise him that the Minister had exercised his power, under s.46A(2) of the Migration Act, to permit him to make a valid application for a temporary protection visa, and invited him to do so.[6] The applicant applied for such a visa on 12 April 2016.[7] In short, the applicant claimed to fear harm because he sold alcohol in Iraq and would be perceived to be an atheist.[8]
[6] CB 1-6
[7] CB 7-77
[8] CB 75-77
On 7 June 2016, the Department wrote to the applicant, relevantly requesting, pursuant to s.91W of the Migration Act, that he “produce documentary evidence of [his] identity, nationality or citizenship for inspection by an officer of the department”.[9]
[9] CB 79
On 9 February 2017, during an interview with the delegate, the applicant provided documents relating to his identity. Those documents included an Iraqi identity card (identity card).[10]
[10] CB 111
On 27 March 2017, the delegate wrote to the applicant, pursuant to s.57 of the Migration Act, to advise that an assessment by a departmental document examiner had determined that the identity card was “a legitimately manufactured documen[t] that has been fraudulently altered” and concluded that “the security features of the [identity] card are not intact and operating effectively as the OVD is damaged and there [are] irregularities to the lamina and evidence of alteration to the photograph in the document”.[11] The delegate stated that the identity card had been assessed to be a “bogus document” (as defined in s.5(1) of the Migration Act). The applicant was invited to provide a reasonable explanation for providing a bogus document and either to produce documentary evidence of his identity, nationality or citizenship or to take reasonable steps to produce such evidence. He was also put on notice that, if the Minister was not satisfied that he had a reasonable explanation and if he did not produce such evidence or take reasonable steps to do so, his visa application must be refused under s.91W(2) of the Migration Act.[12]
[11] CB 111-112
[12] CB 112
The applicant responded to the delegate’s invitation on 7 April 2017.[13]
[13] CB 119-123
On 27 April 2017, the delegate wrote to the applicant to advise that the identity card had been seized under s.487ZJ(1) because he reasonably suspected that it had been forfeited under s.487ZI(2) (Notice).[14] The reason for the delegate’s suspicion was stated to be that, “based on [his] assessment of the [identity card] and other available information”, he reasonably suspected that the identity card was a bogus document, as it had been altered fraudulently. The delegate informed the applicant that he had 90 days from the date of the Notice to institute proceedings against the Commonwealth either to recover the identity card or to seek a declaration that it is not forfeited.
[14] CB 125-126
Also on 27 April 2017, the delegate made a decision, pursuant to s.65(1)(b) of the Migration Act, to refuse to grant to the applicant a temporary visa.[15] The delegate was not satisfied that the applicant met the criteria for the grant of that visa. However, the delegate was satisfied that the applicant had given a reasonable explanation for providing a bogus document and noted that he had provided three other identity documents which were found to be genuine.[16] Accordingly, the delegate found that s.91W(2) of the Migration Act did not apply to the applicant.
[15] CB 131-147
[16] CB 133
On 2 May 2017, the delegate’s decision, being a “fast track reviewable decision” (as defined in s.473BB of the Migration Act), was referred by the Minister to the Authority pursuant to s.473CA of the Migration Act.[17]
[17] CB 291-292
On 18 May 2017, the applicant’s then representative sent to the Authority a submission and country information.[18]
[18] CB 305-317
The present proceedings
As noted above, these proceedings began with a judicial review application filed on 21 July 2017 only in respect of the first decision. The application has been through several iterations since then, first to accommodate the challenge to the decision of the Authority and secondly, to refine the identified issues. The applicant ultimately relied upon a third further amended application filed on 19 June 2018. The grounds in that application are:
1. In deciding to retain the identity card, the First and Second Respondents have asked themselves the wrong questions or addressed the wrong issues in relation to s 487ZK of the Act, and/or have taken into account irrelevant considerations, and/or have failed to take into account relevant considerations, and have thus fallen into jurisdictional error.
2. In deciding to retain the identity card, the First and Second Respondents have behaved in a manner which is legally unreasonable, as lacking an evident and intelligible justification, and as being disproportionate to what was required of them under the Act, and have thus fallen into jurisdictional error.
Particulars in Relation to Grounds 1-2.
The Second Respondent seized the identity card on the basis that it was a bogus document. It has since been accepted by the Second Respondent in his Decision Record in relation to the Applicant's protection visa application, that whilst the Applicant damaged the identity card by attempting to laminate it, the Applicant had "a reasonable explanation for producing a bogus document" within the meaning of s 91 W(2)(c) of the Act, such that he should not be denied a protection visa on that basis.
As a result, the identity card is either not a bogus document and therefore not forfeited to the Commonwealth, or if it is a bogus document, it is not required by the First and Second Respondents for any reason. On the other hand, it is of crucial significance, ipso facto, to the Applicant. There is therefore no basis, in either case, upon which the Respondents should be allowed to retain the identity card.
[Ground 3 in an earlier version of the application was abandoned]
4. In finding that the Applicant would not face a real chance of harm, or a real risk of significant harm if returned to Iraq, the Fourth Respondent asked itself the wrong question, in relation to what constitutes a ‘real chance’ within the meaning of s 5J(1)(b) of the Act, and a ‘real risk’ within the meaning of s 36(2)(aa) of the Act, and thus fell into jurisdictional error.
Particulars in Relation to Ground 4.
The Fourth Respondent acknowledged that Shia Muslims like the Applicant are currently subject to "both indiscriminate and targeted violence at the hands of the Islamic State of Iraq and the Levant (ISIL)", particularly in Bagdad. The Fourth Respondent then said that Shia Muslims faced "a lower risk of violence" in the area to which the Applicant would return. The Fourth Respondent then equated that lower risk of violence with the absence of a "real chance" or a "real risk" of harm to the Applicant.
5. The Fourth Respondent denied procedural fairness to the Applicant and thus fell into jurisdictional error.
Particulars in relation to Ground 5
(i) The Fourth Respondent failed to inform the Applicant of the nature of the material before it.
(ii) The Fourth Respondent failed to alert the Applicant to any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.
(iii) The Fourth Respondent failed to give the Applicant the opportunity to address, orally or in writing, any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.
(iv) In dealing with the review of the Applicant's claims, on the basis of only one side of the argument, where the Applicant was denied the opportunity to make submissions in his own cause, and the IAA considered itself free to make its decision on whatever material it considered appropriate, without the Applicant being told what that material was, the procedure adopted by the Fourth Respondent, suffered inherently and by definition, from bias.
The applicant relies upon his two affidavits made on 3 April 2018 and 16 October 2017.
The Minister relies upon the court book filed on 6 March 2018. The Minister had filed other affidavits, in particular the affidavit of Amanda Kamini Kumar made on 16 July 2018, which bore upon the first decision. Counsel for the Minister, however, chose not to read that affidavit (or any affidavit) in the light of a concession which counsel was instructed to make.[19]
[19] A question arose after the hearing whether the additional evidence should be read, given that the Minister’s concession was not accepted by the applicant, but the Minister’s position did not change
Both the applicant and the Minister prepared pre-hearing written submissions which helpfully bear upon the issues in dispute. I have been assisted by those submissions which were augmented orally at the trial extending over two days.
Consideration
The first decision – did the delegate err in deciding to seize the document?
The Minister concedes that the first decision is affected by jurisdictional error. There is, however, no agreement between the parties as to what the relevant error was. The applicant contends that the identity card is not a bogus document and is therefore not forfeited to the Commonwealth or, if it is a bogus document, it was not required by the delegate or the Commonwealth for any reason. In my view, the Minister’s concession bears only upon the second and alternate proposition.
Applicant’s contentions
On 27 April 2017 the delegate, on behalf of the Commonwealth, and pursuant to the Notice issued under s.487ZJ(2) of the Migration Act, seized the identity card. The reason for the seizure was that the delegate suspected that the document was forfeited to the Commonwealth, pursuant to s.487ZI(1) and (2), as being a bogus document.[20]
[20] Notice of seizure of bogus documents, at CB 125
However, in his protection visa decision record of 27 April 2017, the delegate said, in relation to the identity card, that he accepted the applicant’s explanation that the identity card had been damaged in an attempt to re-laminate it. He further accepted that the applicant had not intentionally altered the identity card, and therefore had a reasonable explanation for providing a “bogus document” as evidence of his identity, such that he could not be denied a protection visa under s.91W(2) of the Migration Act. He also accepted that the applicant had taken reasonable steps to clarify the issue by contacting the Iraqi Consul-General to verify the authenticity of the identity card.[21]
[21] See protection visa decision record pages 2-3, at CB 132 (last paragraph) to 133 (first paragraph)
Despite this, and despite requests for the return of the identity card, the delegate has refused to return it. He continues to retain it as being a bogus document.
Is the identity card a bogus document?
“Bogus document” is defined in s.5 of the Migration Act, relevantly, as a document that
(b) is counterfeit or has been altered by a person who does not have authority to do so; …
If the identity card is not a bogus document, then it does not infringe the prohibition contained in s.487ZI(1) of the Migration Act, and is therefore not forfeited pursuant to s.487ZI(2).
Pursuant to s.487ZK(1)(d) of the Migration Act, a person whose document has been seized, can institute proceedings for a declaration that the document is not forfeited.
The applicant contends that, given that it is common ground that the identity card belongs to the applicant, and is authentic, it cannot be said that it is counterfeit.[22] But has it, within the meaning of s.5 of the Migration Act, “been altered by a person who does not have authority to do so”?
[22] The Macquarie Dictionary (6th Edition, 2013) defines “counterfeit” as “made to imitate and pass for something else; not genuine”
There is no authority on this point. Perhaps because this is the first time that an attempt by the genuine owner of a valid document to preserve it by lamination, has been considered to be an alteration by a person who does not have authority to do so, such that he has created a bogus document.
The applicant submits that such an interpretation cannot be correct. He submits that an attempt to preserve a document cannot be seen as an alteration.[23] It makes no change or modification of substance. He submits that it cannot have been the intention of Parliament to stigmatise an attempt to preserve a document as an alteration, such as to cause it to be considered a bogus document.
[23] The Macquarie Dictionary (6th Edition, 2013) defines “alter” as to “change or modify”
Furthermore, the applicant queries whether a person who owns a genuine document “does not have authority” to seek to preserve it by lamination.
The applicant notes that the nature of the prohibition in s.487ZI(1) of the Migration Act is that “a person … must not give, present, produce or provide a bogus document to an officer…”. The words “give”, “present”, “produce”, and “provide”, all carry with them an aspect of intent. He submits that Parliament cannot be taken to have intended that a person, who is the owner of a genuine document, which he has attempted to preserve, intends to give, produce, present or provide that document as a bogus document.
Even if the identity card is a bogus document, can it still be recovered to the applicant?
The applicant contends that, even if the identity card is a bogus document and is therefore forfeited to the Commonwealth, the applicant can still bring proceedings “to recover the document”.[24] Again, there is no authority on this section, perhaps for the reasons stated at [27] above.
[24] Section 487ZK(1)(c) of the Migration Act
The applicant submits that the Court would consider proceeding under this section, to the benefit of the applicant, if the Court were of the view that the applicant has not sought to deceive anyone and has not sought to gain any improper advantage. It is common ground that this is the situation with the case at hand.
Minister’s contentions
The Minister notes that the applicant is suggesting that the identity card is not, as a matter of objective fact, a “bogus document”. Section 5(1) of the Migration Act relevantly defines a “bogus document” as follows:
“bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:
...
(b) … has been altered by a person who does not have authority to do so; …
…
It will be seen, therefore, that the status of a document as a “bogus document” depends not on its objective characteristics, contrary to the applicant’s submissions, but on the Minister having formed a reasonable suspicion that the document has certain characteristics.[25] Importantly, Grounds 1 and 2, as particularised, do not take issue with the reasonableness of the formation of the Minister’s suspicion, but, rather, the question whether or not the identity card has, as a matter of objective fact, been altered by a person who does not have authority to do so. The Minister concedes that the former is reviewable on judicial review,[26] but maintains that the latter is not as it is tantamount to merits review. As to the former, it is be necessary to show that the delegate did not act in good faith, or acted arbitrarily or capriciously, failed to take into account mandatory relevant considerations, took into account forbidden considerations, or that the exercise of his discretion was unreasonable. However, as Gibbs J (as his Honour then was) observed in Buck v Bavone:[27]
where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion … it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.
[25] BJB16 v Minister for Immigration [2018] FCAFC 49 at [66] per Kenny, McKerracher and White JJ
[26] See, for example, AGG17 v Commonwealth of Australia [2018] FCA 242 at [51] per Charlesworth J
[27] (1976) 135 CLR 110 at 118-119
The Minister submits that, for these reasons alone, Grounds 1 and 2, which seek to have this Court find, as a matter of objective fact, that the identity card is not a bogus document (that is to say, to substitute its own view for that of the Minister), must fail.
In any event, the Minister submits that the formation of the delegate’s suspicion that the identity card is a bogus document could not be said to be unreasonable. The Minister’s submissions refer to documents before the delegate and apparently considered by him. Those documents are not in evidence as the affidavits to which they were annexed were not read. However, it is clear that the delegate considered a submission from the applicant about the identity card.[28]
[28] CB 119-122
The Minister submits that, in the light of the evidence before him, it cannot be said that the suspicion formed by the delegate that the identity card was a bogus document was not reasonably open.
Further, the applicant is not challenging the legality of the opinion formed by the “officer”, as defined in s.5(1) of the Migration Act, who forensically examined the identity card. The Minister submits that the fact that a suspicion was held by an officer (and is not challenged in these proceedings) has the consequence that the identity card was forfeited to the Commonwealth by operation of s.487ZI(2) of the Migration Act at least from the date of the publication of the report provided to the delegate.
In Grounds 1 and 2, the applicant contends that the delegate “asked [himself] the wrong questions”, “addressed the wrong issues in relation to s.487ZK”, “t[ook] into account irrelevant considerations”, “failed to take into account relevant considerations”, and acted in a manner which was “disproportionate to what was required of them under the Act”. However, none of these contentions has been elaborated upon. The Minister concludes that each, therefore, should be rejected.
The Minister notes that the applicant is also taking issue with the delegate’s exercise of discretion, under s.487ZJ(1) of the Migration Act, to seize the identity card.[29]
[29] See [31]-[32] above
The Minister notes that, given the applicant’s abandonment of Ground 3, Ground 2, despite its continued use of the word “retain”, is concerned with the legality of the delegate’s exercise of discretion to seize the identity card on 27 April 2017.
The Minister contends that the applicant’s submissions do not at all engage with the legality of the exercise of the power in s.487ZJ(1), but seek to appeal to the merits of the delegate’s decision. Contrary to the applicant’s submissions, the delegate gave a reason for seizing the identity card: in the Notice, he said that he was seizing the identity card because he reasonably suspected that it had been fraudulently altered. That reason supplied an intelligible basis for the exercise of the power. The applicant has not suggested that this was not a proper basis for the delegate’s exercise of power. Rather, he has emphasised that the delegate should not have seized the document because he has not engaged in deliberate deception or sought to obtain an improper advantage. These matters, however, detract from the question whether the power was exercised unreasonably, as an applicant need not engage in “improper conduct” before the power in s.487ZJ(1) is enlivened.
Further, the Minister submits that contrary to the applicant’s submissions, it is not “common ground” that the applicant “has not sought to deceive anyone and has not sought to gain any improper advantage.”[30] While the delegate accepted that the applicant had provided a reasonable explanation for giving a bogus document to the Department, that says nothing about the applicant’s subjective motive(s). There is said to be no occasion to “procee[d] under [s.487ZK] … to the benefit of the applicant”, the Court’s task relevantly being to assess the reasonableness of the exercise of discretion to seize the identity card.
[30] See [32] above
In any event, the decision to seize the identity card came approximately two weeks after the applicant responded to the delegate’s invitation under s.57 of the Migration Act, giving reasons as to why he gave the identity card to the Department. Those reasons were recorded by the delegate in his reasons for his decision under s.65(1)(b) on the same day as the Notice. They formed a part of the factual context within which the delegate decided to seize the identity card. In these circumstances, and given that the delegate was under no obligation to give reasons for his decision under s.487ZJ(1), it cannot fairly be suggested that he was ignorant of the applicant’s explanation for having given a bogus document to the Department when he came to exercise his discretion under s.487ZJ(1).[31]
[31] Cf Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173 at 185 [25] per French CJ, Bell, Keane and Gordon JJ, 199 [72] per Gageler J; Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 at [42] per Griffiths J
Resolution
Jurisdiction
The Minister’s submissions helpfully traverse the somewhat complex jurisdictional issues concerning review of the first decision. I agree with those submissions.
Pursuant to s.10(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act), the Federal Circuit Court has “such original jurisdiction as is vested in it by laws made by the Parliament” by “express provision” or “by the application of section 15C of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act)to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit Court of Australia in relation to a matter.” Section 15C of the Acts Interpretation Act relevantly provides that, where a provision of an Act, whether expressly or by implication, authorises a civil proceeding to be instituted in a particular court in relation to a matter, that provision shall be deemed to vest that court with jurisdiction in that matter and the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject. However, the Acts Interpretation Act, it should be noted, only applies if there is not a contrary intention in the Act to which it is said to apply.[32]
[32] See s.2(2)
One law made by the Parliament that expressly vests jurisdiction in the Federal Circuit Court is s.476(1) of the Migration Act. Under that provision, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution.” The Federal Circuit Court has no jurisdiction with respect to those decisions listed in s.476(2) of the Migration Act. A “migration decision” is defined in s.5(1) of the Migration Act as including a “privative clause decision”, a “purported privative clause decision” and a “non-privative clause decision”. A “privative clause decision” is relevantly defined in s.474(2) as “a decision of an administrative character made … or required to be made … under this Act …”. A “decision”, in turn, includes a reference to, relevantly, “retaining … an article”[33] and “doing or refusing to do any other act or thing”.[34]
[33] Section 474(3)(f)
[34] Section 474(3)(g)
It is important to be reminded of the fact that the jurisdiction conferred on the Federal Circuit Court by s.476(1) is jurisdiction in matters in which the relief sought is or includes a writ of mandamus or prohibition[35] or an injunction against an officer of the Commonwealth. Conferral of that jurisdiction on the Court “in relation to migration decisions” operates to render a privative clause decision incapable of being called into question in any court other than for jurisdictional error.[36] As the High Court observed in Minister for Immigration v SZSSJ,[37] “[u]nderstood within that statutory context, the words ‘in relation to’ are not words of expansion” but are, rather, “words which connect the particular relief sought in a matter to a particular migration decision which is relevantly either a privative clause decision (because it is unaffected by jurisdictional error) or a purported privative clause decision (because it is affected by jurisdictional error).” The jurisdiction of the Federal Circuit Court by s.476(1) is in “a matter in which the basis for the claim to relief is that the migration decision is in truth no more than a purported privative clause decision.”[38]
[35] Or, by extension, certiorari
[36] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
[37] (2016) 259 CLR 180 at 201 [60]
[38] SZSSJ at [61]
In the present case, the applicant is challenging the following:
a)the characterisation of the identity card as a “bogus document” as defined in s.5(1) of the Migration Act. That is to say, the officer’s formation of a reasonable suspicion that the identity card was altered by a person who did not have authority to do so; and
b)a decision to seize the identity card.
The latter is, plainly, a decision to do “any other act …” and is probably also a decision to “retai[n] … an article”. It is also a decision of an administrative character. It is, therefore, a “privative clause decision” within the meaning of s.474(2). If it is a privative clause decision, it is a “migration decision”.[39]
[39] DVY17 at [117]-[119] per Judge Nicholls
The existence of a reasonable suspicion by an officer that a document has been altered by a person who does not have authority to do so (i.e. that a document is a bogus document) is a jurisdictional fact that conditions the operation of s.487ZI(2) of the Migration Act. The formation of that suspicion does not involve the making of a decision of an administrative character.
Having established that the decision to seize the identity card is a migration decision, a question arises whether this Court’s jurisdiction under s.476(1) has been enlivened. That, in turn, requires consideration of the relief sought in the application. In his application, the applicant is relevantly seeking the following relief:
1. A writ of certiorari, directed to the Fourth Respondent, quashing its decision of 1 September 2017.
2. A writ of mandamus directed to the Fourth Respondent, requiring it to determine the applicant’s application according to law.
3. An order, pursuant to ss 487ZK(1)(a) and (1)(c) of the Migration Act 1958 (Cth) (the Act), that the Applicant’s Iraqi identity card numbered … (the identity card), seized pursuant to a Notice of Seizure by the Second Respondent on 27 April 2017, be recovered and returned to the Applicant.
4. In the alternative to order 3 above, a declaration, pursuant to ss 487ZK(1)(a) and (1)(d) of the Act, that the identity card is not a bogus document and therefore is not forfeited to the Commonwealth.
…
Section 75(v) of the Constitution does not refer to certiorari and declaratory relief. However, the High Court (and the Federal Circuit Court under s.476(1) of the Migration Act) will possess jurisdiction to grant such relief if, for example, prohibition against an officer of the Commonwealth is sought or if the remedy properly lies.[40] Accordingly, if a proceeding genuinely invokes the head of power in s.75(v) of the Constitution, the High Court will have power to grant certiorari, or any other public law remedy not identified in s.75(v) (such as a declaration), even if a claim for prohibition, mandamus or an injunction is withdrawn or dismissed.[41]
[40] Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at 138-139 [42]-[44] per French CJ, Crennan and Kiefel JJ
[41] Re Macks; Ex parte Saint (2000) 204 CLR 158
Although not sought, a writ of prohibition would likely lie to correct any excess of jurisdiction in respect of the latter decision identified at [49](b) above, because that decision, if it were to remain in force, would operate to the applicant’s disadvantage.[42] Accordingly, it is likely that the applicant would be able to seek declaratory relief and an order that the identity card be returned to him (and, if sought, certiorari quashing the latter decision referred to at [49](b) above), under ss.15 and 16 of the Federal Circuit Court Act.
[42] Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 533 per Black CJ, Cooper and Merkel JJ
For these reasons, this Court has jurisdiction under s.476(1) of the Migration Act to entertain that part of the application in which relief is sought against the decision to seize the identity card. For the same reasons, it is “a court of competent jurisdiction” for the purposes of s.487ZK(1).
It is unnecessary to determine whether ss.487ZK(1)(c) and (d) are sources of power for the making of the relief there described, though the better view is that they are not and that it is ss.15 and 16 of the Federal Circuit Court Act that confer power on this Court to grant the relief sought by the applicant.
This may have been a question requiring resolution if the applicant had sought to call in aid the accrued or associated jurisdiction of the Court, to supplement the Court’s jurisdiction under s.476 of the Migration Act. However, in the present case, that extended jurisdiction has not been called in aid and the competence of the Court, for the purposes of s.487ZK of the Migration Act, is limited by s.476.
Although the Minister’s concession (that the decision to seize the identity card is invalid) was not accepted by the applicant, that concession is sufficient to dispose of Grounds 1 and 2. Even if that concession had not been made, I would have found that the delegate fell into error in deciding to seize the identity card, as there was no intelligible justification for that decision once the delegate accepted the applicant’s explanation for providing a bogus document.
It is neither necessary nor appropriate to decide whether the identity card was in fact a bogus document. It is sufficient to conclude that, at the time the delegate formed the view that the identity card was a bogus document, there was a rational and reasonable basis for that belief. The applicant has not challenged that opinion directly. Neither has the applicant called in aid the accrued or associated jurisdiction of this Court in order to seek relief other than that sought on judicial review.
The appropriate course is to quash the seizure decision. It would not be appropriate to compel a further seizure decision as there is no apparent basis for a new decision. Assuming there is no new decision, the applicant should be entitled to recover the identity card.
Grounds 4 and 5 – did the Authority err in reviewing the delegate’s decision?
I agree with the Minister’s submissions concerning the asserted errors by the Authority.
Grounds 4 and 5 in the application assert that the Authority made a jurisdictional error in affirming the delegate’s decision.
Ground 4
In this ground, the applicant argues that the Authority “asked itself the wrong question, in relation to what constitutes a ‘real chance’ within the meaning of s.5J(1)(b) of the Act, and a ‘real risk’ within the meaning of s.36(2)(aa) of the Act” in finding that the applicant would not face a real chance of harm, or a real risk of significant harm if returned to Iraq.
The short answer to this ground is that the Authority did not proceed on the basis that, because the Department of Foreign Affairs and Trade, in its report published on 26 June 2017, opined that Shias in Shia areas (such as the south of Iraq) “face a lower risk of violence” than in other parts of the country, it necessarily followed that the applicant did not face a real chance of harm in Basra.[43] Rather, the Authority, having summarised the country information (to which it was entitled to have regard) which suggested that cities such as Basra were more secure than other parts of Iraq, that Shias in southern Iraq face a lower risk of violence, and internal relocation to southern Iraq is a reasonable and practical option for Shias, specifically turned its mind to whether the presence of a “lower risk of violence” in Basra meant that the applicant faced a real chance of harm there.[44] It answered that question in the negative. The Authority did not assume that, because the level of violence in Basra was lower than in other parts of Iraq, the applicant did not hold a well-founded fear of persecution by reason of the security situation in Basra. It correctly considered “the actual risk in the area in question”.[45]
[43] Cf CID15 v Minister for Immigration [2017] FCA 780
[44] CB 335 [49]
[45] ALV16 v Minister for Immigration & Anor [2018] FCCA 626 at [39] per Judge Manousaridis. Cf SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, where the Administrative Appeals Tribunal only assessed the relative risk of one area compared to the risk in another area in the applicant’s receiving country
For these reasons, the Authority posed the correct question under s.5J(1)(b) of the Migration Act.
Ground 5
The applicant’s complaint in this ground is that the Authority “denied procedural fairness to [him]”. The particulars to this ground provide as follows:
(i) The Fourth Respondent failed to inform the Applicant of the nature of the material before it.
(ii) The Fourth Respondent failed to alert the Applicant to any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.
(iii) The Fourth Respondent failed to give the Applicant the opportunity to address, orally or in writing, any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.
(iv) In dealing with the review of the Applicant’s claims, on the basis of only one side of the argument, where the Applicant was denied the opportunity to make submissions in his own cause, and the IAA considered itself free to make its decision on whatever material it considered appropriate, without the Applicant being told what that material was, the procedure adopted by the Fourth Respondent, suffered inherently and by definition, from bias.
For the following reasons, I reject this ground.
First, s.473DA(1) of the Migration Act operates so that Division 3, together with ss.473GA and 473GB of Part 7AA, is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. This provision is broader than provisions such as ss.51A(1), 357A(1) and 422B(1) of the Migration Act, which contain the qualifying words, “in relation to the matters it deals with”. The effect of the presence of s.473DA(1) is that what is required by the hearing rule of procedural fairness is set forth in, and only in, Division 3 of Part 7AA of the Migration Act. The applicant has not identified any provision in that Division with which the Authority did not comply.
Secondly, Part 7AA of the Migration Act does not contain an equivalent of ss.360(1) or 425(1). As Reeves, Robertson and Rangiah JJ observed in DGZ16 v Minister for Immigration,[46] the High Court’s judgment in SZBEL v Minister for Immigration[47] “is not the appropriate starting point”. It follows, their Honours said at [75], that there is no requirement in Part 7AA to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Nor is there any requirement “to notify the referred applicant that [the Authority] is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate” or “to inform the [referred applicant] of specific reservations about [his or her] case and to provide [him or her] with an opportunity to respond”.[48]
[46] [2018] FCAFC 12 at [69]
[47] (2006) 228 CLR 152
[48] At [72]. See also Minister for Immigration v DZU16 (2018) 253 FCR 526 at 552-553 [97]-[99] per Robertson, Murphy and Kerr JJ; BVD17 v Minister for Immigration [2018] FCAFC 114 at [39] per Flick, Markovic and Banks-Smith JJ; DBE16 v Minister for Immigration [2017] FCA 942 at [59] per Barker J; AXE16 v Minister for Immigration [2018] FCA 646 at [12] per Perram J; CHM16 v Minister for Immigration [2018] FCA 1132 at [43]-[47] per Perry J; CRJ17 v Minister for Immigration [2018] FCA 1404 at [49] per Banks-Smith J
Thirdly, s.473DA(2) provides that the Authority is not under a duty to give to a referred applicant any material that was before the delegate when he or she made the decision under s.65 of the Migration Act.
Fourthly, although Division 3 of Part 7AA does not state exhaustively the limb of natural justice relating to bias, no allegation of bias on the part of the Authority has been made by the applicant, despite paragraph (iv) of the particulars to Ground 5. I therefore reject it.
Conclusion
The applicant has been successful in obtaining relief in respect of the first decision. He has been unsuccessful in the remaining grounds concerning the decision of the Authority. In the light of the Minister’s concession in respect of the first decision, the Minister has foreshadowed an application for costs. I will hear the parties on that issue.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 February 2019
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