DYG18 v Minister for Home Affairs
[2019] FCCA 1142
•13 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DYG18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1142 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – applicants claiming a fear of harm in Iran – applicants’ fears found not to be well-founded – whether the review by the Authority was procedurally unfair considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: ALR17 v Minister for Immigration & Anor [2018] FCCA 3407 |
| First Applicant: | DYG18 |
| Second Applicant: | DYH18 |
| Third Applicant: | DYI18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2120 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | Decided without oral hearing |
| Date of Last Submission: | 10 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr V Kline |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
The requirement for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) is dispensed with.
The application as amended on 10 October 2018 is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2120 of 2018
| DYG18 |
First Applicant
DYH18
Second Applicant
DYI18
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 26 June 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the Minister filed on 10 April 2019.
The applicants are husband, wife and child, and are citizens of Iran. The adult applicants arrived in Australia on 21 February 2013.[1] The applicants applied for temporary protection visas on 1 April 2016.[2] The delegate refused the visa applications[3] and the delegate's decision was referred for review by the Authority.
[1] Court Book (CB) 254
[2] CB 56
[3] CB 254; CB 280
By email dated 12 June 2018, the applicants' representative provided the Authority with new information and submissions.[4] On 26 June 2018, the Authority affirmed the delegate's decision to refuse to grant the applicants protection visas.[5]
[4] CB 317
[5] CB 332
The Authority summarised the adult applicants' claims at [15] of its reasons. It made factual findings regarding those claims from [17]. In summary, the Authority found that none of the applicants faced a real chance of serious or significant harm, including for reason of the first applicant's attendance at a political rally in 2009, his rollerblading, the complaint he lodged in late 2009, or any combination of these matters. With respect to the second applicant, the Authority found she did not face any harm and would not be of ongoing interest to Iranian authorities arising from her breaches of the dress code over a decade ago.
The present proceedings
These proceedings began with a show cause application lodged on 31 July 2018. The applicants now rely upon an amended application filed on 10 October 2018. The single ground in the amended application is:
The Second Respondent denied procedural fairness to the Applicants and thus fell into jurisdictional error.
Particulars
(i) The Second Respondent failed to inform the Applicants of the nature of the material before it.
(ii) The Second Respondent failed to alert the Applicants to any conclusions adverse to the Applicant, which it felt would be open to it on the material before it.
(iii) The Second Respondent failed to give the Applicants 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 Applicants’ 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 Second Respondent, suffered inherently and by definition, from bias.
The matter had been listed for a show cause hearing on 17 April 2019 by a Registrar, prior to the filing of the amended application. The matter came before me for directions on 20 March 2019. At that time, subject to the filing of written submissions, the parties agreed to me dealing with the matter on the papers. Written submissions were filed in accordance with my orders made on that day.
I have before me as evidence the court book filed on 28 September 2018.
Consideration
The applicants concede, on the basis of present authorities binding upon this Court, that they cannot succeed in this Court. The amended application, and the submissions filed in support of it, are in essence preparatory to an attempt to achieve a different outcome on appeal in the superior courts.
The Minister’s submissions deal appropriately with the present state of the law. I agree with those submissions.
The sole ground of the applicants' amended application alleges that the Authority denied the applicants procedural fairness.
Identical grounds of review were rejected in ALR17 v Minister for Immigration & Anor[6] and DTP17 v Minister for Immigration & Ors.[7]
[6] [2018] FCCA 3407
[7] [2019] FCCA 10; from [66]
Section 473DA of the Migration Act 1958 (Cth) (Migration Act) provides:
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.
Part 7AA of the Migration Act does not impose on the Authority procedural fairness obligations of the sort imposed on the Administrative Appeals Tribunal under Parts 5 and 7 of the Migration Act.[8] In DBE16, Barker J stated at [59]:
I accept the Minister’s submissions that no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme. The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 do not apply to reviews under Pt 7AA of the Migration Act. ...
[8] DBE16 v Minister for Immigration [2017] FCA 942 and DGZ16 v Minister for Immigration [2018] FCAFC 12
In DGZ16, Reeves, Robertson and Rangiah JJ stated at [72]:
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
In CRJ17 v Minister for Immigration,[9] Banks-Smith J held:
Section 473DA provides that Division 3 of Pt 7AA, with s 473GA and s 473GB 'is taken to be an exhaustive statement of the requirements of the natural justice hearing rule'. A consequence of this is that, by contrast with reviews under Pt 7 and Pt 5 of the Act, there is no procedural fairness obligation to put dispositive matters to an applicant or to alert an applicant that a matter might be decided on a different basis from how the matter was determined by the delegate. The principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 do not apply to reviews under Pt 7AA of the Act: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59] (Barker J). The Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (Reeves, Robertson and Rangiah JJ) said at [75]:
There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
In this case, the appellant made no assertion before the primary judge of a breach of procedural fairness and identified no obligation in Division 3 of Pt 7AA of the Act that the Authority had breached. Regardless, the Authority was not required to afford the appellant an opportunity to provide new information or put submissions to it or to otherwise send a letter inviting the appellant to do so: COA16 v Minister for Immigration and Border Protection [2018] FCA 475 at [37][38] (Rares J).
The Authority did in fact write to the appellant and informed him of the statutory provisions as to the receipt of new information. The Minister's point is that the primary judge's statement in his reasons should not be taken as any authority that the Authority was obliged to do so and that a failure to do so would have denied the appellant procedural fairness. I accept the Minister's submission. Having addressed the issue of procedural fairness, the primary judge ought to have found that s 473DA addresses the natural justice rule in the context of reviews by the Authority and that the Authority in this case was obliged only to comply with and did comply with the requirements of Division 3 of Pt 7AA with respect to its treatment of purported additional information.
[9] [2018] FCA 1404 at [49]-[51]
In the light of the abovementioned binding authorities of the Federal Court, the applicants' sole ground of review must fail.
Further, the applicants' written submissions do not engage with the facts of the present case. The applicants have not explained how the particulars to their amended ground of review give rise to jurisdictional error, for example, by identifying the adverse conclusions or material referred to by those particulars. For this further reason, the amended application fails to raise a case of jurisdictional error by the Authority.
Conclusion
The applicants have failed to establish that the decision of the Authority is affected by any jurisdictional error. It follows that the decision is a privative clause decision and the application must be dismissed. There is a question of what form that order should take. The Minister seeks an order pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). As noted above, the matter had been listed for a show cause hearing by a Registrar, to be held on 17 April 2019. That listing was vacated by agreement between the parties on the basis that I would deal with this case on the papers following the receipt of further submissions, unless the Court was otherwise advised by the Minister’s representatives within seven days of receipt of the applicant’s written submissions. No such communication was received. On that basis, judgment was reserved upon receipt of the submissions. There having been no show cause hearing, and there being a reserved judgment, the appropriate course in my view, is to dispense with the need for a show cause hearing and to make final orders.
The Minister also seeks an order for costs fixed in the amount of $3,667, which would be the amount recoverable at a show cause hearing. The simple fact that the case has been dealt with on a final basis following submissions does not mean that a different costs order should be made. The amount of work undertaken on behalf of the Minister has been modest, given the Minister’s position that the legal issues in the case are already settled. I will make the costs order in the amount sought on behalf of the Minister.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 May 2019
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