Efa17 v Minister for Immigration

[2018] FCCA 1168

FEDERAL CIRCUIT COURT OF AUSTRALIA

EFA17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1168

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Temporary Protection visas – whether the Authority was required to exercise its powers under s 473CB of the Act – amended application allowed.  

Legislation:

Migration Act 1958 (Cth), ss.473DC, 476.

First Applicant: EFA17

Second Applicant: EFB17

Third Applicant: EFC17

Fourth Applicant: EFD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2919 of 2017

Judgment of: Judge Street

Hearing date: 9 May 2018

Date of Last Submission: 9 May 2018

Delivered at: Sydney

Delivered on: 9 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: MinterEllison

ORDERS

1. A writ in the nature of certiorari is issued calling up the record of the Immigration Assessment Authority and quashing the decision made on 29 August 2017.

2. A writ in the nature of mandamus is issued requiring the Immigration Assessment Authority to conduct the review under Part 7AA according to law.

3. The first respondent to pay the applicants costs of the proceedings as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2919 of 2017

EFA17

First Applicant

EFB17

Second Applicant

EFC17

Third Applicant

EFD17

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 29 August 2017 affirming a decision of the delegate not to grant the applicants Temporary Protection visas. 

2. The applicants were found to be citizens of Iraq and their claims were assessed against that country.  On 21 April 2017, the delegate refused the grant of a protection visa. 

3. In the course of that process, the delegate had sent an invitation to attend an interview to both the first applicant and the second applicant. The solicitors for the applicants responded that the applicants would attend. The first and second applicants attended for the purpose of that interview. A transcript has been tendered as to what occurred in that regard. That transcript identifies that the delegate said early on, at the commencement of the hearing, that the second respondent was present at the interview and he is just sitting in for the pre-forma of this part of the interview, to which the legal representative said, “Okay”. This was entirely inconsistent with the invitation that had been sent to the second applicant to attend the interview, to treat him as being sitting in for the pre-forma part of the interview. The second applicant was entitled to expect to be interviewed in accordance with the invitation that he had been sent and the response of his solicitors indicating he would attend. 

4. Whilst it is surprising that the legal representative did not raise further issue in relation to the approach adopted by the delegate, the Authority identifies having listened to the recording and was accordingly well aware that the delegate had, in essence, sent the second applicant away in circumstances where, on the material before the Authority, the Authority knew the second applicant had been invited to attend the hearing. 

5. Further, following the notification of the referral of the application for the protection visa to the Authority for review, submissions were provided to the Authority which relevantly noted that the second applicant was not interviewed to provide further information, despite the fact that he has submitted his own claims for protection. The submission noted that it was supposed to be the second applicant’s opportunity to have his claims heard. The submission noted that the application assessment proceeded without the second applicant being heard in relation to the real risks, apparently on some notion of privilege and efficiency, at the expense of fairness.

6. The reference to privilege and efficiency is not one that is immediately apparent on the face of the transcript of the interview before the delegate. Whilst there may be circumstances in which one applicant is interviewed separately, it does not justify the observation and, in essence, direction that was made by the delegate that the second applicant was not going to be interviewed. The Authority had the opportunity of listening to that interview and is taken to be aware of what was said by the delegate in that regard. 

7. More importantly, the submission sent to the Authority in response to the Authority’s notification of the fast track referral, expressly addressed the fact that the second applicant was not interviewed, despite having his own claims. Nowhere in the Authority’s reasons does the Authority expressly consider or explain why the Authority declined to exercise its power under s 473DC of the Act to interview the second applicant, or give the second applicant a further opportunity to provide new information, in circumstances where he had been sent away from the interview.

8. Mr Johnson of counsel on behalf of the first respondent submitted that the second applicant had, by reason of the invitation, been given an opportunity to put on submissions and could have sought to put on new information. 

9. This was a case where the second applicant had his own claims. In those circumstances, I accept the submissions of Mr Jones that it was legally unreasonable of the Authority, where aware of the invitation originally sent to the second applicant to attend and where aware of what occurred in the recording, as identified above, and where aware and on notice of the submissions complaining in that regard, was required as a matter of legal reasonableness to address the considerations under s 473CB of the Act regardless of the fact that there was no express reference requesting the Authority to do so in the circumstances of the present case. 

10. The submissions, on their face, flagged a significant and material departure that had occurred in relation to the assessment of the second applicant’s claims, which had an impact also on the first applicant. A credit finding was made by the Authority, preferring the evidence of the husband in the statement in support of his visa to that of the wife and also rejecting the first applicant’s claims. It was incumbent upon the Authority to exercise its powers under s 473DC of the Act reasonably. 

11. I do not regard the fact that the second applicant was originally included as a member of the family unit as giving rise to a satisfactory explanation, in the circumstances of the present case, given the failure by the Authority to expressly consider and address the exercise of power under s 473DC of the Act.

12. In circumstances where the Authority was aware of what had occurred before the delegate and the second respondent having been invited to attend an interview and being sent away by the delegate, and where the absence of the opportunity to be interviewed was raised in the submissions before the Authority, the Authority was required, as a matter of legal reasonableness, to expressly consider whether or not it should exercise its powers under s 473DC of the Act. The failure to do so reflects a constructive failure by the Authority to properly exercise its jurisdiction, constituting a jurisdictional error. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 12 October 2018