EGJ17 v Minister for Immigration

[2018] FCCA 3266

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGJ17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3266

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decision of IAA

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Migration Act 1958 (Cth), ss.5H(1), 36(2)(aa), 473CA

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Jazztel Plc v Commissioners for Her Majesty’s Revenue & Customs [2018] EWHC 1830 (Ch)
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Six Continents Ltd v Commissioners for Her Majesty’s Revenue & Customs [2015] EWHC 2884
Spencer v The Commonwealth of Australia (2010) 241 CLR 118
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1
SZWCO v Minister for Immigration and Border Protection [2016] FCA 51

First Applicant: EGJ17

Second Applicant: EGK17

Third Applicant: EGL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 946 of 2017

Judgment of: Judge Jarrett

Hearing date: 13 April 2018

Date of Last Submission: 16 November 2018

Delivered at: Brisbane

Delivered on: 16 November 2018

REPRESENTATION

Solicitors for the Applicants: Angus Francis Lawyers

Counsel for the First Respondent: Mr Psaltis

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

THE COURT ORDERS THAT

1. The applicants have leave to file and serve a further amended application in the form of Annexure A to the affidavit of Angus Francis dated 7 November, 2018.

THE COURT DECLARES THAT

1. The purported appointment, by notice published on 23 January 2002 in the Commonwealth of Australia Gazette No. GN 3, of an area of waters within the Territory of Ashmore and Cartier Islands as a “proclaimed port” is invalid.

2. None of the applicants is an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958.

3. None of the applicants have been notified pursuant to s.66 of the Migration Act 1958 of the decision of a delegate of the Minister for Immigration and Border Protection dated 10 March, 2017.

THE COURT FURTHER ORDERS THAT

1. There issue a writ of certiorari quashing the decision of the Immigration Assessment Authority made on 15 August, 2017.

2. The first respondent pay the applicants’ costs of and incidental to these proceedings fixed in the sum of $9,639.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 946 of 2017

EGJ17

First Applicant

EGK17

Second Applicant

ELK17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are Iranian citizens of Arab descent. They arrived in Australia on 3 April, 2013 by boat.  For the purposes of the Migration Act 1958 (Cth) they are unlawful maritime arrivals.

2. On 9 August, 2016 they lodged a combined application for Protection (Class XD) Temporary Protection (Subclass 785) visas.  On 10 March, 2017 a delegate of the second respondent made a decision to refuse to grant the applicants the visas.  Because the delegate’s decision was a fast track reviewable decision, it was referred automatically to the second respondent pursuant to s.473CA of the Migration Act.

3. On 15 August, 2017 the second respondent decided to affirm the delegate’s decision.

4. By these proceedings the applicants seek judicial review of that decision.  In their amended application filed on 29 March, 2018 the applicants raise two related grounds of review, namely that the second respondent’s decision was based on findings and inferences not supported by logical grounds and that, as a result, the second respondent failed to take into account a relevant consideration.

5. The Minister submits that the second respondent’s decision was one reasonably open to it on the evidence and material before it such that it cannot be said to be irrational or illogical.  Once that is accepted, the first respondent argues, there can be no basis for saying that the second respondent’s failure to find in the way contended for in the applicants’ submissions means that the second respondent failed to take into account a relevant consideration.  The first respondent contends that application should be dismissed with costs.

6. The second respondent enters a submitting appearance.

7. The initial hearing of the application took place before me on 13 April, 2014.  In the course of preparing my reasons for judgment, I became concerned about an issue upon which I had received no submissions.  Accordingly, I had my associate correspond with the parties and invited them to make written submissions upon the matters of concern.  All parties made further written submissions on 27 July, 2018.  The applicants also made an application for leave to re-open their case and to lead further evidence to support their submissions.   That was unopposed.  An affidavit of the applicants’ solicitor was filed on 20 September, 2018 and the first respondent filed further written submissions on 26 September, 2018.

8. For the reasons that follow, the application must succeed with costs.

The claims

1. The applicants are a family of three.  They are all citizens of Iran.  The first and third applicants (respectively husband and wife) are primary applicants.  They made combined claims for protection in the visa application.  The second applicant, the first and third applicants’ child, relies on membership of the first and third applicants’ family group to found her claim for protection.

2. The first applicant made claims based upon his ethnicity and the systemic discrimination that he claimed is experienced by Ahwazi Arabs.  His case, and that of the third applicant, was that Ahwazi Arabs faced discrimination in education, housing and employment.

3. Further, the first applicant relied upon an incident that occurred when he was interviewed for some employment which he says indicated that not only was he the subject of racial discrimination, but that he was imputed with an anti-government or anti-regime opinion.  The second respondent accurately summarised the first applicant’s claims about this matter as follows:

   11. In the second month of 1391 in the Iranian calendar, the applicant husband went to an interview for a truck driver’s job with the Ministry of Transport. After being asked some questions and presenting his documents and qualifications, which he believes demonstrated that he was suitable for the job, he was asked whether he was an Arab; when he said that he was, he was told that he was not needed. The applicant husband asked why, and pointed out that he met all the requirements for the job. The interviewer responded saying “we don’t even count you among ourselves.” The applicant husband said that his tone was abusive and the applicant husband considered that he was insulting him personally, and his race. The applicant husband complained about the way he was being treated; he has described what then happened between them as a “verbal dispute”. The applicant husband was told to wait in the room. After ten minutes two other men came and took him to a car; they drove him for an hour to a “centre” which belonged to the sepah. There he was detained for one week, beaten and questioned. He said that he was asked repeatedly why he had got into an altercation with their colleague, he was accused of conspiring against the regime and of being anti-government. They repeatedly tried to have him sign a blank piece of paper and when he refused he continued to be beaten. They bashed his head against the wall and twisted his finger. Eventually he was released when he agreed to sign the paper. At the TPV interview he said that it said something like “Because this is my first offence and because I got into an argument with that person, I promise never to insult the government or do anything similar”. In his written claims he said that he agreed not to contact the interviewer again. At the TPV interview he said that he did not have a chance to read the paper properly before signing it.

   12. The applicant husband said that when he returned home he was in very bad shape; his finger was broken, and he had very bad headaches. He slept a lot and became reclusive.

   13. After his return home, approximately every fifteen days men would come to his house and take him back to the centre. He would be placed in a room for several hours where he could hear the sound of other people being tortured. He claims that he continued to be accused of anti-regime activity and insulting a government official and the supreme leader.”

4. The applicants also claimed to fear harm as failed asylum seekers should they be returned to Iran.

5. The second respondent accepted that the applicants were Ahwazi Arabs.  It accepted that Ahwazi Arabs were subjected to systemic low-level discrimination, particularly in the applicants’ home district.  The second respondent also accepted much of what the first applicant claimed about this incident at the employment interview.  It accepted that the first applicant was detained and mistreated in circumstances which arose from an argument or altercation which he described as occurring during that interview.  The second respondent accepted that the first applicant was denied the employment opportunity because of his ethnicity.  However, it did not accept that:

   a)the first or third applicant had suffered discrimination amounting to persecution on account of their Arab ethnicity or for any associated reason;

   b)the mistreatment of the first applicant at the employment interview resulted from any real concern on the part of the authorities about him being a political activist, or that it resulted in the genuine imputation of a political opinion to him;

   c)the first applicant continued to be detained and accused of anti-regime political activities for a number of months after the initial incident;

   d)the first applicant’s father and brother have been detained and interrogated in his absence;

   e)there is a real chance that the applicants would face harm as Ahwazi Arabs on return to Iran; or

   f)there is a real chance that the applicants would face harm as failed asylum seekers on return to Iran.

6. Later in these reasons I will deal with the second respondent’s reasons for rejecting the first applicant’s claims that he was imputed with an anti-government political opinion, but for present purposes it is sufficient to record that the second respondent considered the treatment that it accepted the first applicant suffered was an abuse of state power in respect of what was essentially a personal dispute between the first applicant and the interviewer. 

7. The second respondent also rejected the applicants’ claims that they faced a real chance of persecution as failed asylum seekers on the basis, inter alia, that the applicant husband’s altercation with the sepah official would not be known or bring him to the attention of the authorities at the airport or that he has a profile that would make him subject to greater scrutiny on return by authorities. 

8. The second respondent concluded that neither the first or third applicants satisfied the requirements for the definition of refugee in s.5H(1) of the Act, nor did they satisfy the requirements in s.36(2)(aa) of the Migration Act. It followed that the second applicant was not entitled to the grant of a protection visa either.

9. Accordingly, the second respondent affirmed the decision of the delegate not to grant the applicants protection visas.

The grounds of review

1. The amended application for review contains two grounds.  I will deal with each in turn.  The first ground is in the following terms:

   1. The second respondent’s decision was based on findings and inferences which are not supported by logical grounds and thus affected by jurisdictional error.

   Particulars

   a. The second respondent accepted that the applicants are Ahwazi Arabs from Iran (CB) 19).

   b. The second respondent accepted that the first applicant “was detained and mistreated in circumstances which arose from an argument or altercation which occurred when he was denied a job opportunity because of his ethnicity” (CB15).

   c. The second respondent accepted that: i) evidence before the second respondent was that Ahwazi Arabs who attempted to assert their cultural or political rights are imputed with an anti-regime profile by sepah and the authorities; and ii) based on the above evidence, “the dispute” between “the applicant husband and the sepah official over the job interview could be construed as an attempt to assert his cultural or political rights,” and ... “that this explains the extreme and unjustified response at the time” (CBl 7).

   d. Contrary to the above, the second respondent illogically and irrationally inferred that “whatever happened to the applicant husband was the result of the misuse of state resources because of an essentially personal dispute in which I accept his ethnicity was a factor”, and not as the result of an imputed anti-regime opinion (CB15).

2. The applicants argue that the finding of the second respondent that the detention and torture of the first applicant by the sepah was not the result of imputed anti-regime opinions that put him at risk of future harm, either as an Ahwazi Arab or failed asylum seeker, but instead “an essentially personal dispute in which his ethnicity was a factor”, was irrational and illogical in light of:

   a)evidence before the second respondent that Ahwazi Arabs who attempted to assert their cultural or political rights are imputed with an anti-regime profile by sepah and the authorities; and

   b)the second respondent’s own finding, based on the above evidence, that “the dispute” between “the applicant husband and the sepah official over the job interview could be construed as an attempt to assert his cultural or political rights,” and “that this explains the extreme and unjustified response at the time”.

3. They argue that in characterising the first applicant’s past persecution as the result of a “personality dispute in which ethnicity was a factor”, the second respondent has drawn an irrational and illogical inference as to the likely causes of that harm that is not available on the evidence before the second respondent, including what the second respondent accepts was the “extreme and unjustified response” by Iranian authorities.  Based on the evidence before the second respondent, the applicants argue that the only logical inference to be drawn from the first applicant’s detention and torture is that he was viewed as “an Arab expressing anti-government views who needed to be quickly and brutally suppressed”.  They argue that “It is illogical and irrational to infer that the applicant was simply a disgruntled job applicant that had a falling out with his potential employer who also happened to be a racist with access to a state-run torture centre.”  They argue that as the flawed inference drawn by the second respondent in relation to the reason for the first applicant’s detention and torture are critical to the second respondent’s ultimate decision, the decision is based on findings and inferences which are not supported by logical grounds and thus affected by jurisdictional error.

4. I accept that the critical conclusion reached by the second respondent that underpins the decision in respect of this aspect of the applicants’ claims is that the job interview incident and its sequelae was essentially a personal dispute between the first applicant and the interviewer in which the first applicant’s ethnicity was a factor. 

5. As to that dispute and its consequences, the second respondent expressed some reservations about the first applicant’s credibility.  Specifically, the second respondent:

   a)found it very difficult to believe that the first applicant would be subjected to a week-long detention, interrogation and torture by a state agency “because of an essentially personal dispute”;

   b)had misgivings about the evidence of the first applicant and the third applicant that he did not tell her what had happened to him because he did not want to worry her;

   c)there was no explanation as to why “to this day” the first applicant had still not told the third applicant what happened;

   d)found it hard to believe that not telling the third applicant why the first applicant was returning home in a bad condition, why he was affected by the mistreatment and why he continued to be taken and detained by the sepah for a number of months following the initial detention, would have alleviated the stress and worry that she must have been under seeing these things happening to her husband;

   e)thought the inherent unlikeliness of the first and third applicants’ evidence on this point led the second respondent to doubt that the applicants were being entirely truthful about what happened.

6. However, given the second respondent’s recognition that Ahwazi Arabs from the applicants’ area could be subject to violence merely because of their ethnicity and given the “generally credible account of the events” by the first applicant, the second respondent accepted that the first applicant was detained and mistreated in circumstances which arose from an argument or altercation which occurred when he was denied a job opportunity because of his ethnicity.  It follows from this that the second respondent accepted that the applicant had been detained for a week and subjected to mistreatment as he had claimed.  I am confirmed in that conclusion by the findings of the second respondent at [37] of the reasons for decision:

   While I accept that the applicant husband was involved in a row with a member of the sepah, and that he was detained and physically mistreated afterwards, I am of the view that the matter came to an end when he signed the paper which I am satisfied, on the basis of his initial evidence, was in effect an undertaking to leave the man alone and not engage in such conduct in the future.

7. The first respondent’s evidence was that he was released when he signed the paper after being detained for a week following the job interview. 

8. Moreover, at [39] of its reasons, the second respondent described the response of the interviewer and others to the first applicant’s objections voiced at the job interview as “extreme and unjustified”.  Those matters tend to confirm that the second respondent accepted all that the first applicant had to say about the interview and what happened in the week following.

9. The second respondent accepted material before it that established that Ahwazi Arabs who attempted to publicly assert their cultural or political rights are imputed with an anti-regime profile by sepah and the authorities.  The second respondent said (citations omitted):

   38.    DFAT assesses that most Arab Iranians do not come to the attention of authorities and are subject to only low levels of adverse attention by the state. However, the risk increases dramatically for Arabs who attempt publicly to assert cultural or political rights; as noted above, Ahwazi Arabs from Khuzestan are more likely to do so than other Arab groups. Country information considered by the delegate indicates that since demonstrations in Ahwaz in 2005 in support of Arab rights, there have been numerous arrests of demonstrators, and of perceived activists and organisers in the lead up to the anniversary of the 2005 protests; a significant number have been executed following flawed trials, extra-judicially executed, or have died in prison reportedly under torture.  DFAT assesses that Arabs who become known to the Iranian authorities by seeking to assert political or cultural rights may face harassment if they are perceived to threaten the constitutional foundations or the territorial integrity of the Islamic Republic.  Depending on the profile or activities of the person (as well as the prevailing political environment and sometimes the personalities of individual security officials), this harassment could include monitoring, summons for questioning, or arrest. Family members are sometimes threatened and, less often, imprisoned or forced into hiding.

1. The second respondent also accepted that the first applicant’s objections to his job interviewer’s attitude could be construed as an attempt to assert his cultural or political rights and that was the explanation for the response to the incident (my emphasis):

   39.    The applicants have not claimed to fear harm because they have ever expressed their political opinion or engaged in political activity of any kind including in relation to Ahwazi Arab issues.  I accept that the dispute between the applicant husband and the sepah official over the job interview could be construed as an attempt to assert his cultural or political rights, and I consider that this explains the extreme and unjustified response at the time; …  

2. However, the second respondent did not conclude that the inference to be drawn from the first applicant’s subsequent detention and torture was that he was viewed as an Arab expressing, or as the second respondent put it “actually being attributed with”, anti-government views who needed to be dealt with – that is to say an Arab activist.  That the second respondent could have reached that conclusion is beyond argument, I think.  The material was sufficient to permit a finding that the first applicant had asserted his cultural or political rights (as the second respondent had indeed found) and that consequently, as a perceived activist, he had been detained and tortured.  Such a finding would have been consistent with the DFAT material reviewed by the second respondent referred to in [38] of the second respondent’s reasons.  Importantly, according to that material, having participated in protests was not the only way in which an Ahwazi Arab might be identified as a political activist and detained and tortured for that reason.  According to DFAT’s assessment, Arabs who become known to the Iranian authorities by seeking to assert political or cultural rights (as the second respondent accepted that the first applicant may have done here) may face harassment if they are perceived to threaten the constitutional foundations or the territorial integrity of the Islamic Republic.

3. What the second respondent concluded was that the detention and torture experienced by the first applicant was a random act of violence that was not state sponsored.  The second respondent found:

   39.    …I accept that it is plausible that individual Ahwazi Arabs may be subject to essentially random acts of violence or brutality, even if they are not engaged in overt political activity, in the context of the general discrimination against and repression of Ahwazi Arabs; I have accepted that this is what happened to the applicant husband following the altercation arising from the job interview. 

4. This finding was also open on the material before the second respondent.  There was material before the second respondent that demonstrated that Ahwazi Arabs may be subject to random acts of violence or brutality, even if they are not engaged in overt political activity.  There is, in the material before the second respondent, evidence of general discrimination against and repression of Ahwazi Arabs in Iran.  The second respondent reasoned:

   39.    …However, given that he is not a political or Arab rights activist and does not claim to have ever engaged in such activity; and given that I am satisfied that he does not have an official record or profile as an Arab rights activist because I am satisfied that the security officials who mistreated him were not acting in an official capacity, I am not satisfied that there is a real chance that the applicant husband would be the victim of such harm again in the reasonably foreseeable future. The country information does not suggest that such violence against Ahwazi Arabs, outside the context of overt political activity, happens with such frequency that the applicant husband, as an ordinary Ahwazi Arab, faces a real chance of harm of this kind, notwithstanding his past experience

5. A critical aspect of this reasoning, in my view, is the second respondent’s satisfaction that the “security officials who mistreated him were not acting in an official capacity”.  Given that the second respondent was “satisfied” about this matter, it must be the case that there was material before the second respondent which either demonstrated that matter or from which it could be inferred.  However, there appears to be none.  There is no suggestion in any of the material that the persons who took the applicant away from the job interview and subsequently harmed him were not acting in their official capacity, whatever that might mean.  It was always the first applicant’s claim that he was taken away and harmed by officers of sepah.  The second respondent accepted the first applicant’s claims about the interview and what happened in the following week.  There is nothing in the first applicant’s version to suggest that the officers who took him away and harmed him were not acting as sepah officers.

6. Given that there was no basis upon which the second respondent could be satisfied that the sepah officers were not acting in their official capacity, the second respondent’s finding – its satisfaction that it was so – was an error in the second respondent’s fact finding.  That error is sufficient, in my view to demonstrate jurisdictional error on the part of the second respondent for the reasons that follow. 

7. As was observed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133] (my emphasis):

   A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence.

8. That reasoning in SZMDS is not confined to the end result, or ultimate conclusion reached by an administrative decision maker.  It applies to findings on the way to that conclusion which reveal illogicality or irrationality amounting to jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51.

9. In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 the Full Federal Court explained the application of some aspects of the principles set out in SZMDS at [47] (my emphasis):

   Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein)

10. The fact here about which the second respondent expressed its satisfaction was critical to its reasoning.  That it must have been is self-evident from the nature of the fact found by the second respondent.  One could easily imagine that if the second respondent was satisfied that the sepah officers were acting in their official capacity, the second respondent’s reasoning and the outcome might have been different.  Put in terms of the explanation of the operation of this principle by Wigney J in SZWCO at [52], having regard to the weighing exercise conducted by the second respondent as revealed by its reasons referred to above, it cannot be said that the weighing exercise would have produced the same outcome if the second respondent had not taken into account its illogical and erroneous finding relating to the capacity in which the sepah officers were acting. It is not the case that the illogical reasoning and state of satisfaction expressed by the second respondent about the capacity in which the sepah officers were acting was not material to the second respondent’s ultimate conclusion.

11. I am satisfied that this ground reveals jurisdictional error in the second respondent’s decision.

Ground 2

1. This ground is in the following terms:

   2. The second respondent failed to take into account a relevant consideration.

   Particulars

   a. The second respondent accepted that failed asylum seekers who had been active politically inside Iran before departure or outside Iran were at risk of harm on return (CB18).

   b. The second respondent found that the first applicant’s incident with sepah was not likely to be cause for the first applicant to come to the attention of authorities on return or be cause for him to be regarded as a dissident or otherwise under suspicion upon return (CB18).

   c. In making this finding, and as a result of the irrational inference pleaded in ground 1 above, the second respondent has failed to take account of the first applicant’s imputed anti-regime opinion.

2. This ground is directed to the applicants’ claims to fear harm should they return to Iran because the first applicant will be imputed with an anti-government opinion or belief, inter alia, by reason of his altercation at the job interview and subsequent detention.  It is directed to the second respondent’s conclusion that, “I do not accept that the applicant husband’s altercation with the sepah official would be known to, or cause him to come to the adverse attention of the security forces at the airport on his return, even in conjunction with his possible identification as a failed asylum seeker and his ethnicity”.

3. As I have attempted to demonstrate above, the conclusion reached by the second respondent about the job interview and its consequences was formed on the foundation of an error concerning a critical fact in the second respondent’s reasoning.  It cannot be said, in my view, that the illogical reasoning and state of satisfaction expressed by the second respondent about the capacity in which the sepah officers were acting was not material to the second respondent’s ultimate conclusion.  If the second respondent had reached a conclusion that the first applicant’s detention and the harm done to him following the job interview was not simply a personal dispute taken too far, but rather was state sponsored discrimination and torture, the second respondent’s conclusions about this aspect of the matter may well have been different.

4. The first respondent argues that even if the applicants make out their first ground of review, this ground must fail because it merely invites the Court to engage in impermissible merits review.

5. I disagree.  It is not the case that the illogical reasoning and state of satisfaction expressed by the second respondent about the capacity in which the sepah officers were acting was not material to the second respondent’s ultimate conclusion I have extracted above.

6. This ground too, is made out.

Conclusion

1. The applicants have established that the second respondent’s decision is affected by jurisdictional error.  Accordingly, there should be relief in the terms set out at the commencement of these reasons.

A further matter

1. On 7 November, 2018 the applicant filed an application in a case seeking leave to amend the applicants’ initiating application to add a further ground of review, summary judgment in the proceedings, certain declarations and the issue of constitutional writs.  The basis of the application was the decision of the Full Federal Court in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178.

2. By an outline of submissions filed on 15 November, 2018 the first respondent indicated that leave to amend was not opposed. However, the first respondent opposed the granting of summary judgment. The submissions referred to the explanation of the summary judgment power which finds expression in this Court in s.17A of the Federal Circuit Court of Australia Act 1999; in Spencer v The Commonwealth of Australia (2010) 241 CLR 118. The written submissions referred to 2 English authorities, Six Continents Ltd v Commissioners for Her Majesty’s Revenue & Customs [2015] EWHC 2884 and Jazztel Plc vCommissioners for Her Majesty’s Revenue & Customs [2018] EWHC 1830 (Ch). On the basis of those authorities, the first respondent submitted that where there is a pending or potential appeal on a determinative point of law, the appropriate courses for the court to exercise its discretion not to award summary judgment.

3. Here, there is no pending appeal.  It is said that the first respondent is considering seeking special leave to appeal the decision of the Full Federal Court in DDB16.  

4. The present case is on all fours with DBB16.  That decision compels the conclusion that the second respondent had no jurisdiction to conduct a review pursuant to Part 7AA of the Act in respect of his visa application.  Rather, he was entitled to a full merits review by the Administrative Appeals Tribunal pursuant to Part 7 of the Act.

5. I was informed by counsel for the first respondent that the first respondent neither consented to nor opposed the making of final orders in terms suggested by the applicants’ counsel in the form of a draft that was handed up to me.  The orders are appropriate. 

6. In those circumstances, the application succeeds and the applicants are entitled to the relief that they seek.  A remittal is inappropriate given that the second respondent is bereft of jurisdiction. 

7. For the reasons that were discussed on the hearing of the application for leave to amend, the applicants should have their costs on a fixed sum.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 16 November, 2018.

Date: 16 November, 2018