FEDERAL COURT OF AUSTRALIA
FCS17 v Minister for Home Affairs [2020] FCAFC 68
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- AGLC
- FCS17 v Minister for Home Affairs [2020] FCAFC 68
- Case
- [2020] FCAFC 68
- Decision Date
CaseChat Overview and Summary
The appeals in FCS17 v MHA arose from the decisions of the Federal Circuit Court dismissing applications for judicial review of decisions made by the Immigration Assessment Authority, which affirmed the Minister's refusal of the appellants' applications for protection visas. The appellants argued that the Authority had erred in concluding that they could find safe refuge in their home country outside their habitual place of residence. The primary issue for the court was the proper construction of section 5J(1)(c) of the Migration Act 1958 (Cth) and whether it was qualified by a requirement of reasonableness.
The court determined that it was not necessary to consider the argument that the failure to apply a reasonableness aspect in the consideration of the appellants' claims for refugee status constituted a jurisdictional error. This was because the Authority had already rejected the appellants' claims to complementary protection, which involved considering the reasonableness of relocation. The court also found that the proposed additional evidence regarding the security situation in Afghanistan post-decision was not relevant as it did not pertain to the circumstances at the time of the Authority's decision. Consequently, the court refused the appellants' applications to adduce further evidence.
The appeals were dismissed, and the court ordered that the appellants pay the respondent's costs, to be assessed if not agreed. This outcome followed from the court's conclusion that the Authority's decisions did not involve jurisdictional errors and that the additional evidence would not have altered the outcome. The orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
The court determined that it was not necessary to consider the argument that the failure to apply a reasonableness aspect in the consideration of the appellants' claims for refugee status constituted a jurisdictional error. This was because the Authority had already rejected the appellants' claims to complementary protection, which involved considering the reasonableness of relocation. The court also found that the proposed additional evidence regarding the security situation in Afghanistan post-decision was not relevant as it did not pertain to the circumstances at the time of the Authority's decision. Consequently, the court refused the appellants' applications to adduce further evidence.
The appeals were dismissed, and the court ordered that the appellants pay the respondent's costs, to be assessed if not agreed. This outcome followed from the court's conclusion that the Authority's decisions did not involve jurisdictional errors and that the additional evidence would not have altered the outcome. The orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. Appeal dismissed.
2. The appellant do pay the first respondent's costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
It is not necessary to consider an argument advanced for the Minister to the effect that any failure by the relevant decision-makers (in each case, Reviewers of the Immigration Assessment Authority) to give effect to a reasonableness aspect in considering the claim by the appellants that they were refugees was not sufficiently material to demonstrate jurisdictional error. The argument was based upon the fact that in each case under appeal the applicant for a visa had made a claim based upon complementary protection. In considering the claim to complementary protection the question of whether the applicant could reasonably relocate was considered and rejected by the Authority. It may be that the application of a form of reasonableness test in the context of the test as to whether a person was a refugee may cause a focus upon different considerations to those which arise in the context of a claim to complementary protection. In particular, the significance of the person's home area may not be as great. However, given the conclusion we have reached on the question of construction, it is not necessary to consider those aspects.Application to adduce further evidence The appellants sought leave to rely on further affidavit evidence in each appeal. It sought to establish that there had been a serious deterioration in the security situation in Afghanistan since the decisions by the Authority to which the appeals relate. The material sought to be adduced was not before the Authority or the primary judge. It was contended that this Court could receive the additional material because it would be relevant to the Minister's contention that any jurisdictional error was not a material failure to conform to the statutory requirement. For reasons we have given it is not necessary to consider the question of materiality. However, materiality is a matter to be determined having regard to the circumstances at the time the Authority made its decision. Where there has been a change in circumstances since a decision by the Authority it is necessary for an applicant to raise those matters in the context of the further exercise of power as part of any process of removal from Australia consequent upon the Authority's decision. Therefore, the evidence was not of a kind that might have affected the outcome before the primary judge. For those reasons, we refuse the applications to adduce further evidence in the form of the affidavits.Conclusion and costs It follows that the appeals in both matters must be dismissed. There being no reason to depart from the usual approach to costs, the order in both matters should be that the appeal be dismissed with costs to be assessed if not agreed.
Decision
Reasons for decision
The appellants sought leave to rely on further affidavit evidence in each appeal. It sought to establish that there had been a serious deterioration in the security situation in Afghanistan since the decisions by the Authority to which the appeals relate. The material sought to be adduced was not before the Authority or the primary judge. It was contended that this Court could receive the additional material because it would be relevant to the Minister's contention that any jurisdictional error was not a material failure to conform to the statutory requirement. For reasons we have given it is not necessary to consider the question of materiality. However, materiality is a matter to be determined having regard to the circumstances at the time the Authority made its decision. Where there has been a change in circumstances since a decision by the Authority it is necessary for an applicant to raise those matters in the context of the further exercise of power as part of any process of removal from Australia consequent upon the Authority's decision. Therefore, the evidence was not of a kind that might have affected the outcome before the primary judge. For those reasons, we refuse the applications to adduce further evidence in the form of the affidavits.Conclusion and costs It follows that the appeals in both matters must be dismissed. There being no reason to depart from the usual approach to costs, the order in both matters should be that the appeal be dismissed with costs to be assessed if not agreed.
Ratio Decidendi
Legal Principle Established
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