EQJ17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

EQJ17 v Minister for Home Affairs [2020] FCA 33

Appeal from: Application for judicial review:  EQJ17 v Minister for Immigration [2018] FCCA 2597
File number: NSD 1903 of 2018
Judge: PERRY J
Date of judgment: 29 January 2020
Catchwords: MIGRATION – application for judicial review of Federal Circuit Court (FCC) decision – where FCC refused to extend time under s 477(2), Migration Act 1958 (Cth), within which to seek judicial review of IAA decision affirming decision not to grant the applicant a protection visa – observations as to limited scope of judicial review of FCC decision – where FCC held applicant provided inadequate explanation for delay – whether FCC’s reasons were deficient so as to give rise to a constructive failure to exercise jurisdiction – where potential failure by FCC to consider substance of proposed ground of appeal was not material to FCC’s decision – application dismissed
Legislation:

Migration Act 1958 (Cth) s 477(2)

Federal Court Rules 2011 (Cth)

Cases cited:

AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091

BVG17 v BVH17 [2019] FCAFC 17

CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204

COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; (2018) 259 FCR 1

Craig v South Australia (1995) 184 CLR 163

DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; (2018) 264 FCR 454

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53

Minister for Home Affairs v DUA16 [2019] FCAFC 221

Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470

Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 264 CLR 151

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442

SZTES v Minister for Immigration and Border Protection [2015] FCA 719

SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158

Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60

Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89
Date of hearing: 11 March 2019
Date of last submissions: 18 March 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 49
Counsel for the Applicant: The Applicant appeared in person with the assistance of an Interpreter
Solicitor for the First Respondent: Ms S Burnett of Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

NSD 1903 of 2018
BETWEEN:

EQJ17

Applicant
AND:

MINISTER FOR HOME AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent

JUDGE:

PERRY J

DATE OF ORDER:

29 JANUARY 2020

THE COURT ORDERS THAT:

1.Order 2 of the orders made…

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Details
Case
[2020] FCA 33
Decision Date

CaseChat Overview and Summary

The case of EQJ17 v Minister for Home Affairs involved the applicant, an Iraqi national, seeking judicial review of a decision by the Federal Circuit Court of Australia (FCC) to refuse an extension of time to seek judicial review of a decision by the Independent Review Authority (IAA). The IAA had affirmed a decision by the Minister for Home Affairs to refuse the applicant's application for a protection visa. The primary legal issues were whether the FCC had committed a jurisdictional error in refusing to extend the time and whether the FCC's reasons for its decision were deficient.

The FCC had held that the applicant had provided an inadequate explanation for the delay in seeking judicial review. The court noted that judicial review of the FCC's decision was limited, and a jurisdictional error by the FCC itself had to be established. The court found that the FCC's reasons were not deficient, as the potential failure by the FCC to consider the substance of one of the proposed grounds of appeal was not material to its decision. The court dismissed the application for judicial review.

The court vacated the earlier orders, joined the FCC as the third respondent, and dismissed the application for judicial review. The applicant was ordered to pay the costs of the first respondent as agreed or assessed. The court emphasised the limited scope of judicial review of the FCC's decision, noting that it was not sufficient for the applicant to demonstrate that the FCC erred in failing to find that the IAA fell into jurisdictional error. The court's decision underscored the importance of establishing a jurisdictional error on the part of the FCC itself.

Orders

Orders of the court

1. Order 2 of the orders made on 21 November 2018 be vacated.

2. The Federal Circuit Court of Australia be joined as the third respondent to the proceedings.

3. The application for judicial review of the decision of the Federal Circuit Court of Australia is dismissed.

4. The applicant is to pay the first respondent’s costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In the present case, a delegate of the Minister notified the IAA under s 473GB(2)(a) of the Act that in the delegate’s view, a document or information identified in the certificate should not be disclosed to the applicant or his representative (Court Book (CB) 116). It is apparent that the IAA did not disclose the fact of this notification to the applicant. As the decision of the High Court in BVD17 makes clear, the IAA’s non-disclosure to the applicant of the notification it received could not give rise to any error: see BVD17 at [34]-[35] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).3. BACKGROUND3.1 The applicant’s claims The applicant entered Australia in 2012 as an unauthorised maritime arrival and applied for a protection visa on 12 June 2015 pursuant to an invitation to do so. As earlier mentioned, the applicant claimed to fear harm from the Mahdi army if returned to Iraq. He claimed that he had been hired by a local officer of the Mahdi army, Mr Z, to undertake work on his house and that while undertaking that work, he had accidentally discovered a store of ammunition and weapons. He informed Mr Z of his discovery and was accused of being a spy for the Americans or the Iraqi government. He was attacked by members of the Mahdi army as a result of his discovery. They also raided his family home and forced the applicant and members of his family to flee. The applicant further claimed to fear harm due to the security situation in Iraq and, in particular, the recent increase in militia activity in southern Iraq.3.2 The delegate’s decision The delegate refused the protection visa application on 17 December 2015. The delegate did not accept the applicant’s claims that he had been contracted to undertake work on a house owned by a member of the Mahdi army, that he discovered the roomful of ammunition and weapons, or that he had been threatened by members of the Mahdi army (CB110). Nor, although the delegate accepted that the applicant had a subjective fear of harm in respect of the security situation in southern Iraq, did the delegate consider that there was any Refugee Convention or other reason why he would be personally targeted (CB111). 3.3 The IAA’s decision The delegate’s decision was referred to the IAA on 21 December 2015 and affirmed by the IAA on 18 January 2016. The IAA stated that it had regard to the material referred by the Secretary of the Department pursuant to s 473CB of the Act and to those parts of the submission from the applicant received by the IAA on 8 January 2016 which reiterated a number of the applicant’s claims and challenged various aspects of the delegate’s decision, on the basis that this material was not new information within the meaning of s 473DC of the Act (IAA decision at [5]-[7]). However, the IAA was not satisfied that there were exceptional circumstances justifying consideration of the remainder of the country information provided in the applicant’s submission which was not before the delegate, given among other things that the applicant was aware of the delegate’s concerns regarding his credibility and adverse country information, and that he had been given an adequate opportunity to respond to those concerns (IAA decision at [8]).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The delegate refused the protection visa application on 17 December 2015. The delegate did not accept the applicant’s claims that he had been contracted to undertake work on a house owned by a member of the Mahdi army, that he discovered the roomful of ammunition and weapons, or that he had been threatened by members of the Mahdi army (CB110). Nor, although the delegate accepted that the applicant had a subjective fear of harm in respect of the security situation in southern Iraq, did the delegate consider that there was any Refugee Convention or other reason why he would be personally targeted (CB111). 3.3 The IAA’s decision The delegate’s decision was referred to the IAA on 21 December 2015 and affirmed by the IAA on 18 January 2016. The IAA stated that it had regard to the material referred by the Secretary of the Department pursuant to s 473CB of the Act and to those parts of the submission from the applicant received by the IAA on 8 January 2016 which reiterated a number of the applicant’s claims and challenged various aspects of the delegate’s decision, on the basis that this material was not new information within the meaning of s 473DC of the Act (IAA decision at [5]-[7]). However, the IAA was not satisfied that there were exceptional circumstances justifying consideration of the remainder of the country information provided in the applicant’s submission which was not before the delegate, given among other things that the applicant was aware of the delegate’s concerns regarding his credibility and adverse country information, and that he had been given an adequate opportunity to respond to those concerns (IAA decision at [8]). The IAA referred to country information as to the indefinite freezing of the Mahdi army’s activities on 28 August 2008, and an announcement that year by Muqtada al-Sadr that the majority of the Mahdi army would be transitioned into a sociocultural organisation (the Mumahidun) while a small group of well-trained and tightly controlled fighters (the “Promised Day Brigades”, or PDB) would continue to target the foreign coalition (IAA decision at [16]-[17]). The IAA also referred to an interview with Muqtada al-Sadr in 2013 in which he stated that the Mahdi army (PDB) was still in existence under his leadership but was non-operational (IAA decision at [18]). In contrast to the delegate, the IAA accepted that the applicant had been paid to undertake work at the house of the Mahdi army member, that he had discovered a store of weapons and ammunition in that house, and that the Mahdi army might store weapons and ammunition at the houses of members. However, the IAA was not satisfied that the applicant’s discovery or knowledge of the weapons or ammunition posed a threat to the Mahdi army or the PDB or would be of concern to them “given the changed nature of [the] Mahdi Army’s existence by 2012 that the PDB were only armed to fight the coalition who had departed Iraq in 2011, and that the possession of weapons by such persons was common knowledge” (IAA decision at [21]). 3.4 Application for an extension of time to the FCC

Ratio Decidendi

Legal Principle Established

As to the second ground, the primary judge’s findings as to the merits of each ground “at an impressionistic level” (FCC reasons at [11]) may be summarised as follows. (1)Proposed ground 1 challenging the IAA’s finding that under s 473DD of the Act there were no exceptional circumstances to justify considering the applicant’s new country information lacked merit because the IAA did not misapply s 473DD of the Act. On the face of the IAA’s reasons, it had regard to the nature of the new information (FCC reasons at [15]).(2)Proposed ground 2 was properly conceded by the applicant’s counsel as it was bound to fail on the current state of the law (FCC reasons at [16]).(3)Proposed ground 3, that the IAA overlooked or failed to consider the applicant’s submission that the Mahdi army “faced a challenge from a splinter group” and “that the weapons he discovered had ‘Iranian numbers on the boxes’”, lacked merit because it invited the FCC to engage in impermissible merits review (FCC reasons at [17]).(4)Proposed ground 4 alleged that the IAA used country information relating to an event in 2008 to assess the correctness of an event which took place in 2012. The primary judge found that this ground lacked merit because the IAA’s reasons were “footnoted by reference to country information, dated 1 March 2013, and [were] referrable to a fact being asserted by the [IAA] as to what had occurred at a particular time” (FCC reasons at [18]).(5)Proposed ground 5 alleging jurisdictional error in the IAA’s reasons at [35]-[37], lacked merit because, on a fair reading of its reasons, the IAA correctly applied the law relating to the real chance test of serious harm (FCC reasons at [19]).(6)Finally, proposed ground 6 alleged that the IAA fell into jurisdictional error at [49] of its reasons in concluding that any risk of significant harm to the applicant was “remote” based on DFAT country information that Shias in Shia-dominated provinces of southern Iraq were at a “low risk” of generalised violence. The primary judge found that this ground lacked merit because it was open to the IAA to refer to that country information and that, reading the IAA’s reasons as a whole, the IAA did not misapply the statutory provisions (FCC reasons at [20]).4. CONSIDERATION 4.1 The limited scope of judicial review of the FCC decision It is important to stress that this is an application for judicial review of the FCC decision and not an appeal. The fact that the FCC’s decision can be challenged only by judicial review is a consequence of s 476A(3) of the Act which provides that no appeal may be brought to the Federal Court from a decision of the FCC refusing to make an order under s 477(2) to extend time. As a result, it is not sufficient, for example, for the applicant to demonstrate that the FCC erred in failing to find that the IAA fell into jurisdictional error. A jurisdictional error on the part of the FCC itself must be established. The jurisdiction of an inferior court to decide matters is broader than that of an administrative decision-maker such as the IAA and therefore the scope of jurisdictional error in this context is narrower: CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204 (CNC15) at [46] (the Court). Thus, after discussing the scope of errors of a jurisdictional kind in the context of an administrative tribunal, the High Court explained in Craig v South Australia (1995) 184 CLR 163 at 179-180 that: In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error.(emphasis added)