EEM17 v Minister for Immigration
[2018] FCCA 337
•7 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EEM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 337 |
| Catchwords – MIGRATION – Immigration Assessment Authority – safe haven enterprise (class XE) visa –“new information” – whether detailed submissions supplied to the Tribunal three hours after the handing down of its decision amounted to “new information” under Part 7AA of the Migration Act 1958 (Cth) – IAA read and considered those submissions even though the submissions were supplied after the delegate was functus officio – no disadvantage to this applicant – application of judicial review dismissed. |
| Legislation: Migration Act 1958, pt.7AA, ss.36(2)(a), 36(2)(aa), 65, 473DC, 473DD, 473DE Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Chhor v Minister for Immigration and Border Protection [2017] FCCA 2135 CSR16 v Minister for Immigration and Border Protection [2017] FCCA 2222 DZU16 v Minister for Immigration and Border Protection [2017] FCCA 851 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration and Border Protection v Le (2007) 164 FCR 151 Toura v Minister for Immigration and Border Protection [2017] FCA 1405 |
| Applicant: | EEM17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | PEG 505 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 7 February 2018 |
| Date of last submission: | 7 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 7 February 2018 |
REPRESENTATION
| Solicitors for the applicant: | Estrin Saul Lawyers |
| Counsel for the first respondent: | Mr P J Hannan |
| Solicitors for the first respondent: | Spark Helmore Lawyers |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Spark Helmore Lawyers |
ORDERS
This proceeding is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 505 of 2017
| EEM17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
This case concerned the refusal of the Immigration Assessment Authority (“IAA”) to grant the applicant a safe haven enterprise (class XE) visa of the four grounds of review on which the applicant initially relied, ground 2 having since been abandoned. Ground 3 related to assertions that the IAA failed to consider certain things. The other ground of review alleged a breach of s.473DE of the
Migration Act 1958(Cth) (“the Act”). All grounds involved a construction of aspects of Part 7AA of the Act.
The background to this case may be as shortly stated as the applicant’s solicitor recorded in his written submissions filed 24 January 2018. The applicant, a citizen of Sri Lanka of Tamil ethnicity arrived at Cocos Keeling Island on 17 December 2012 as an illegal maritime arrival. On 18 May 2016 he applied for the visa under consideration in this case. The Minister’s delegate decided to refuse to grant the visa on 24 July 2017. Upon referral to the IAA, it decided to affirm the delegate’s decision.
In support of his visa application, the applicant contended that he feared persecution and significant harm by reason of his Tamil ethnicity and his religion. He also claimed to fear significant harm by reason of his imputed association with the Liberation Tigers of Tamil Eelam (“LTTE”) for two reasons. The first was due to the fact that his former residence was in an area controlled by the LTTE. The second was due to his father’s arrest by Indian authorities on suspicion of the LTTE in the acquisition of boats.
The IAA took the view that none of the claims were made out and it refused to grant the visa, primarily on the basis that the applicant did not meet the requirements of s.36(2)(a) or s.36(2)(aa) of the Act.
He sought the issue of constitutional writs on the basis that the IAA had fallen into jurisdictional error on any of the four grounds he alleged. In this case, the question for me is whether on any of his four grounds of review he succeeded.
Synopsis
For the reasons that follow in my judgment, none of the grounds of review were made out.
In greater detail
The four grounds of review raised fact specific allegations. Rather than reciting the history of the case as it unfolded before the delegate and the IAA, it is more efficient to canvass the factual matters that were germane to each separate ground of review. Let me go immediately to the grounds of review.
Ground 1
In his amended application, leave for filing of which was given by consent on 17 January 2018, the applicant wholly recast his case. In its amended form, ground 1 was as follows –
The Immigration Assessment Authority (Authority) failed to consider whether it should accept ‘new information’ in accordance with the requirements of s.473DD of the Migration Act 1958 (Ct) (Act).
Particulars
(a)The authority considered the ‘post-interview submissions by the applicant’s migration agent, which attached a photograph of the applicant attending Tamil Heroes’s [sic] Day commemorations in Australia’ (CB 220-221 [6]).
(b)The ‘post‑interview submissions by the applicant’s migration agent’ are ‘new information’ as they were not before the Delegate when the Delegate made the decision under section 65 of the Act.
The applicant relied on six propositions in support of ground 1. They were as follows –
a)the IAA referred in paragraph 29 of its reasons to the applicant’s post-interview submissions;
b)the post-interview submissions, (a document not before the delegate at the time of the delegate’s decision), was “new information” for the purposes of s.473DC of the Act;
c)the delegate’s decision made no reference to the post-interview submissions, unsurprisingly, as the document was provided to the delegate after the delegate’s decision was finalised;
d)
the IAA failed to consider whether it should accept the
post-interview submissions as “new information” in accordance with s.473DD of the Act;
e)the IAA was not in a position to use the new information as the basis of any credibility findings against the applicant; and
f)the IAA had fallen into jurisdictional error by failing to consider whether it should accept the new information in accordance with the requirements of s.473DD of the Act.
The post-interview submissions on which ground 1 focused took the form of a 13-page letter from Estrin Saul Solicitors dated 24 July 2017. To that letter was appended a photograph of a person holding what appeared to be a banner or flag on which was displayed a roaring tiger’s head circled by two crossed rifles, the circle being formed by what looked like unused bullets.
The delegate’s decision was provided to Estrin Saul by email at
4.30 p.m. on 24 July 2017, according to the affidavit of Claire Faulkner affirmed 17 January 2018. The letter that was the post-interview submission, also dated 24 July 2017, was sent by email at 7.52 p.m. on 24 July 2017, according to Ms Faulkner’s affidavit. There was no doubt that the post-interview submissions, that is to say, the Estrin Saul letter, was provided to the Tribunal after it handed down its decision. In view of the detail in that submission and the time of its despatch, one wonders why it could not have been provided to the delegate prior to the delegate’s handing down of its decision at 4.30 p.m. on 24 July 2017. Be that as it may, Ms Faulkner did not explain why those detailed submissions were not supplied any earlier than they were.The IAA mentioned the applicant’s post-interview submissions in paragraph 29 of its reasons, as mentioned above. Three sentences in that paragraph were relevant. It is necessary to record them –
I do not accept that the applicant has been involved with the Australian Tamil Congress since he has been in Australia. The applicant raised these claims for the first time in the
post-interview submissions, but did not provide any meaningful details of his involvement. … In these circumstances, I consider the photograph of the applicant purportedly taken on Tamil Heroes’ Day to be staged in an attempt to strengthen his protection claims, and not reflective of his actual political opinion or involvement.
The applicant’s many contentions about the post-interview submissions, their status and their legal significance commenced with the proposition that the post-interview submissions were
“new information” within the meaning of Part 7AA of the Act. The phrase “new information” in Part 7AA has been the subject of a good deal of judicial interpretation even though that part of the Act commenced operation only as recently as 2015. One of the earliest expositions was given by the Full Court of the Federal Court in
Minister for Immigration and Border v AMA16[1] (“AMA16”) in which Griffiths J summarised the origins and operation of the legislative amendments effected by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. His Honour extracted some key aspects of the explanatory memorandum to the Bill, those providing what his Honour described as a helpful overview of the new regime. Griffiths J set out the full text of the helpful overview in paragraph 13 of his Honour’s reasons and while it is not useful to reproduce that here, let me paraphrase the more salient aspects from his Honour’s recital of the explanatory memorandum overview. It was as follows –[1] [2017] FCAFC 136.
a)the new Part 7AA established the IAA and the new limited merits review framework;
b)the Minister is required by new Part 7AA to refer fast track reviewable decisions to the IAA and to provide the IAA with review material as soon as reasonably practicable after the primary decision to refuse to grant a protection visa has been made under s.65 of the Act;
c)the IAA has power to affirm the decision or remit it;
d)the IAA is to pursue the objective of providing a mechanism of limited review that is efficient and quick;
e)the IAA has discretionary powers to get new and relevant information in the most suitable way from applicants;
f)the IAA is under no duty to accept or request new information or to interview an applicant;
g)irrespective of whether the IAA obtained new information through the exercise of its discretionary powers or if the applicant produced it voluntarily, the IAA is prohibited from considering new information and it can only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new material.
In CSR16 v Minister for Immigration and Border Protection[2] I provided an analysis of the operation of aspects of Part 7AA, mainly in relation to s.473DD of the Act.
[2] [2017] FCCA 2222.
Returning to AMA16, Griffiths J addressed the prohibition in s.473DD of the Act upon the IAA’s consideration of new information in the absence of exceptional circumstances. In paragraph 21 of his Honour’s reasons, his Honour held that the IAA is prohibited from considering any new information unless, first, it is satisfied that exceptional circumstances exist to justify its consideration of the new information and second, the referred applicant satisfies the IAA either the new information was not and could not have been provided to the Minister (relevantly, the delegate) before the decision was made under s.65 of the Act or the new information is “credible personal information” not previously known but if known, may have affected the consideration of the applicant’s claims.
In s.473DC of the Act , the phrase “new information” is any documents or information that were not before the Minister – relevantly, the delegate – when the decision under s.65 was made and the IAA considers may be relevant. In this case, the applicant argued that the post-interview submissions, that is to say, the 24 July 2017 Estrin Saul letter and photograph, were “new information”. The applicant argued that despite referring to the photograph and the reference to raising certain claims for the first time in those post-interview submissions, the IAA failed to consider whether to accept that new information.
It was true that paragraph 29 of the IAA’s reasons referred to the Tribunal’s refusal to accept that the applicant had been involved with the Australian Tamil Congress since he had been in Australia. That much appeared from the first sentence of paragraph 29. It was also true that the IAA stated in the second sentence of paragraph 29 that the claim about the applicant’s involvement with the Australian Tamil Congress was raised for the first time in the post-interview submissions. In the second-last sentence of paragraph 29 the IAA referred to the photograph. The question became therefore whether the post‑interview submissions and photograph were “new information” for the purposes of s.473DC(1) of the Act.
Examined slightly differently, a different but related question was whether, by the IAA’s mention of the post-interview submissions, those documents acquired the status of “new information” such that the IAA was required to deal with that new information in a particular way. The flip of that inquiry was – what was the status of the post-interview submissions if not new information within the meaning of s.473DC of the Act or if not information before the delegate?
As a starting premise, let me observe that there is no authority binding upon me of which I am aware that has pronounced upon this precise issue in this case.
In s.473DC of the Act, the IAA is empowered to “get” any documents or information that was not before the delegate when the delegate made the s.65 decision and which the IAA considers to be relevant. On a plain reading construction of the wording of that section, it is the IAA that “gets” the information. The verb is in the active tense and the subject of the verb is the IAA. The activity of “getting” imports the notion that the IAA undertakes the activity of seeking and obtaining the information that was not before the delegate when the delegate made the s.65 decision. Griffiths J mentioned such a construction was in paragraph 20 of his Honour’s reasons in AMA16. In other words, on that construction, only documents or information “got” by the IAA that was not before the delegate when making the s.65 decision was
“new information”. In that construction, if the IAA did not, itself, obtain or “get” the information by its own activity as opposed to the relevant information being supplied unrequested by some other party, then the information that was not before the delegate cannot be
“new information” as defined.Yet that construction stands at odds with the content of the explanatory memorandum. In the passage mentioned by Griffiths J in AMA16, (at [13]), the explanatory memorandum relevantly stated as follows –
As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information.
Section 473DC(2) of the Act provides that the IAA is under no duty to get, request or accept, new information, whether by the applicant or any other person, or in any other circumstances. Self-evidently, any document or information that was not before the delegate when it made its s.65 decision and which is supplied to the IAA by an applicant need not be accepted by the IAA.
Were it not for one thing, that scenario might address the facts of this case where the solicitors for the applicant emailed, without the IAA requesting, the post-interview submissions. In other words, here the applicant’s solicitors took it upon themselves to provide those submissions to the IAA. Pursuant to s.473DC(2) of the Act the IAA was under no duty to accept those submissions.
But it did. It referred to them in its own reasons. Of the photograph, the IAA expressly stated it considered the photograph.
Embedded in the applicant’s submissions was the notion that the IAA did not engage in the preliminary task of satisfying itself that the elements of s.473DD were met before it allowed the receipt of the
post-interview submissions.
Of course, central to the applicant’s contentions about ground 1 was the characterisation that the information in the post-interview submissions was all information that was new on the basis that the information was not before the delegate when the delegate made its determination. True, the submission was emailed by the applicant’s solicitors after the time when the delegate handed down his decision, but that did not mean some or all of the material in the post-interview submission was not before the delegate. It fell to the applicant in this case to identify that the jurisdictional error lay in the IAA dealing with new information contrary to the way Part 7AA prescribed. I was not persuaded that the whole of the information in the post-interview submission was
“new information”, properly so called. A good deal of the information in the post-interview submission had been before the delegate. To that extent, it was not, in fact or in law, “new information”. The applicant was required to satisfy me on a judicial review application that jurisdictional error was made. I was not so persuaded.
It must not be overlooked that the IAA in fact considered the material the applicant wanted it to consider. The IAA had regard to the applicant’s post-interview submission. The applicant was not, thereby, disadvantaged. The submission was dense, complex and detailed. The IAA examined it as was observed in paragraph 29 of its reasons. The applicant’s real grievance lay in the fact that the IAA did not find in the applicant’s favour, having examined those post-interview submissions.
In this case, the post-interview submissions were provided a little over three hours after the delegate handed down its decision. Those submissions were involved, detailed and densely reasoned. They must have taken a large amount of time to produce. A draft of them was undoubtedly in a state of readiness well prior to the time when the delegate handed down its decision. Precisely why the submissions were not provided to the delegate went unexplained. Similarly, nowhere was it explained why the post-interview submissions were provided to the delegate three hours after the handing down of the delegate’s decision. It was arguable that the delegate was functus officio upon the handing down of its decision. In Chhor v Minister for Immigration and Border Protection[3] I examined in detail the concept of functus officio once the tribunal has provided its reasons. Given that the delegate in this case was functus officio when he or she handed down the decision, it made little sense for the applicant’s solicitors to provide submissions to the entity, the statutory duty of which had been discharged. The IAA’s receipt and consideration of the post-interview submissions worked to the applicant’s advantage. If the applicant’s legal contentions were correct that the proper characterisation of those submissions was
“new information”, the IAA was required to undertake the complex and likely unsuccessful steps set out in s.473DD of the Act. The fact that the IAA found against the applicant was beside the point as the applicant wanted the IAA to receive and consider his post-interview submissions, and that occurred. The IAA received them and considered them.
[3] [2017] FCCA 2135.
In my view, ground 1 was devoid of merit. Contrary to the applicant’s contention, it was evident from paragraph 29 of the IAA’s reasons that the IAA did, in fact, consider the applicant’s post-interview submissions.
Finally, in respect of ground 1, the applicant called in aid a decision of a judge in this court, in DZU16 v Minister for Immigration and Border Protection[4] (“DZU16”). That decision was denounced by the
Full Court of the Federal Court in its recent decision in Minister for Immigration and Border Protection v CRY16.[5]
[4] [2017] FCCA 851.
[5] [2017] FCAFC 210, [32].
I decline to follow DZU16 as given by a judge of this court, but even if the Full Court had not pronounced adversely upon it, a single judge’s decision of this court does not bind me. The submission in paragraph 25 of the applicant’s submission was wrong in law.
Ground 1 failed.
Ground 2
Ground 2 is not pressed by the applicant.
Let me turn to ground 3.
Ground 3
The applicant asserted that the IAA erred by failing to consider untranslated documents. The applicant’s solicitors affirmed an affidavit to which he exhibited those untranslated documents. They were not in the English language. That will, no doubt, explain why the IAA said what it said in paragraph 7 of its reasons. I do not agree that the IAA erred in any way in disregarding documents not in the English language. Tellingly, the applicant’s solicitor did not rely or purport to rely on any principle of law to support his contention that some error of law amounting to jurisdictional error was made. This ground failed. It is well-established that it is not up to the Tribunal nor the Minister nor the delegate to make out the applicant’s case. Authority from the High Court in Abebe v Commonwealth[6] stands for that proposition. As to the proposition that it is not for the Tribunal to make out the applicant’s case for him, the decision in Minister v Le[7] and the decision in Toura v Minister of Immigration and Border Protection[8] stand as but two examples.
[6] (1999) 197 CLR 510.
[7] (2007) 164 FCR 151.
[8] [2017] FCA 1405.
Ground 3 failed.
Ground 4
In support of ground 4, the solicitors for the applicant contended that the IAA erred in failing to consider an aspect of his complementary protection claim.
This ground was confusingly expressed. Taking it in stages, it seemed to me that the applicant was arguing that the IAA concluded that the photograph attached to the post-interview submissions was the subject of comment at paragraph 29 of the IAA’s reasons. In essence, the IAA took the view that the photograph was staged in an attempt to strengthen his protection claims. He said the IAA’s consideration of the complementary protection claim under s.36(2)(aa) of the Act did not include a reference to that photograph. As such, the applicant said the IAA failed to consider a component of his claims, especially his claim in respect of s.36(2)(aa) of the Act.
I reject the contention. To the extent that the photograph may have had a bearing on the complementary protection claim, the finding in paragraph 29 of the IAA’s reasons bore upon the matter. It would be absurd to suggest that the finding in paragraph 29 about the photograph being staged could not be said to be referrable to one component of the applicant’s claim, yet the precise same finding would be different or inapplicable to some other component of the claim. The finding that the photograph was staged applied to all claims, it seemed to me. It could not be said that the IAA failed to consider the complementary protection claims. It did.
The solicitor for the applicant took me to authority on page 6 of his submissions that he said showed a failure to consider a particular thing amounted to jurisdictional error. Not only am I not bound by that authority but it turned on a matter wholly different to the events with which I am concerned. I reject the proposition.
This ground failed.
Conclusion
In conclusion, I dismiss the proceeding.
Costs
The applicant failed on all grounds. Ordinarily, the Minister would be entitled to his costs of the proceeding. In view of the circumstance of this case, ordinarily, I would have said that I do not consider that the Minister should have the whole of his costs. The Minister failed to provide submissions as ordered. In my preparation of this case, I would have been much assisted by reading in advance what points the Minister made. The applicant could have prepared better had the Minister filed and served his submissions in accordance with the orders previously made.
That said, the applicant did not oppose the late provision of the Minister’s submissions. In those circumstances, he was not disadvantaged. What might have been a non-compliance with the Minister’s obligation in respect of his model litigant status appears to be unimportant in the circumstances of this case.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Date: 15 February 2018
3
8
0