FCZ17 v Minister for Immigration and Border Protection
[2024] FedCFamC2G 478
•27 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCZ17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 478
File number(s): MLG 2532 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 27 May 2024 Catchwords: MIGRATION - temporary protection visa – application for judicial review of decision of Immigration Assessment Authority – whether the Applicant was denied procedural fairness – whether the Authority failed to conduct its review – jurisdictional error not established – application dismissed with costs.
Legislation: Migration Act1958 (Cth
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Craig v South Australia (1995) 184 CLR 163, 175
DBE16 v Minister for Immigration and Border protection [2017] FCA 942
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 15 May 2024 Date of hearing: 21 May 2024 Place: Melbourne The Applicant: Appearing in person Solicitor for the Respondents: Australia Government Solicitor ORDERS
MLG 2532 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCZ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
27 MAY 2024
THE COURT ORDERS THAT:
1.The application filed 23 November 2017 be dismissed.
2.The Applicant pay the First Respondent’s costs in the amount of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
The Applicant is a citizen of Sri Lanka who sought protection in Australia on the basis of claims to fear harm on return including that, as a single, young Tamil woman, she would be targeted with gender-based violence, subjected to sexual discrimination and sexual violence.
The Applicant now seeks judicial review of an administrative decision to affirm an earlier decision to refuse her a temporary protection visa.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
On 28 September 2012, the Applicant arrived in Australia as an unauthorised maritime arrival.
On 2 March 2016, the Applicant applied for a Temporary Protection (subclass 785) visa.
On 22 June 2017, a delegate of the First Respondent Minister refused to the grant the temporary protection visa.
The matter was subsequently, on 27 June 2017, referred to the Immigration Assessment Authority (Authority).
On 27 July 2017, the Applicant made written submissions to the Authority and requested a hearing so she may present her claims in person.
On 14 November 2017, the Authority affirmed the delegate’s decision to refuse the grant of the temporary protection visa and did so without holding a hearing.
The Authority’s decision
The Authority’s decision identified the materials it had considered (and not considered) in conducting its review. Specifically, at paragraphs [3] to [8] of the Authority’s reasons, the decision maker:
(a)Stated that they had regard to the material given by the Secretary of the then Department of Immigration and Border Protection.
(b)Considered the Applicant’s written submissions provided to the Authority on 12 July 2017 but determined that those submissions contained argument about matters that were before the delegate and did not contain new information and therefore was not able to be considered; and
(c)Noted the Applicant’s request for an oral hearing to present her claims in person but, taking into account that the Applicant had made her claims to the delegate and the Applicant’s representative had made submissions before the delegate made the decision, decided not to exercise the power to request new information.
At paragraph [9] of the Authority’s reasons, the Applicant’s claims for protection were summarised. There, the Authority acknowledged the Applicant’s claims to fear harm on return to Sri Lanka on account of:
(a)Her historical interactions with and mistreatment by the Sri Lankan Army, who had a camp close to her house and who had questioned and interrogated her because they thought she looked like another girl who had escaped the LTTE (Liberation Tigers of Tamil Eelam) camp;
(b)Her status as a Tamil who are subject of systemic discrimination, ridicule and humiliation; and
(c)Her status as a single, young female Tamil which would result in her physical and/or sexual assault.
At paragraphs [13] to [29], the Authority dealt with the Applicant’s claim to fear harm on account of Sri Lankan Army interest.
There, the Authority accepted that the Applicant was questioned on one occasion by the Sri Lankan Army because of her resemblance to an LTTE member and allowed her to leave. It did not accept that she was questioned on a second occasion or that she would have been released on the first occasion if the Sri Lankan Army believed or suspected she was an escaped LTTE member. It noted that the Applicant in her protection visa interview confirmed that no one had ever harmed her. The Authority was not satisfied that Sri Lankan authorities would continue to have an interest in the Applicant five years after she was last questioned and was satisfied that, at the time of her departure from Sri Lanka, the Applicant was not considered to be a member of or associated with the LTTE or had a political profile which would have brought her to the attention of the Sri Lankan authorities. The Authority concluded it was satisfied on the evidence that the Applicant would not be harmed as a result of these incidents: at [25].
The Authority engaged with the Applicant’s claim to fear serious harm or death as a Christian which appeared in her statement of 23 February 2016 but dismissed this because of evidence at the arrival interview on 7 January 2013 about fasting by reference to the Hindu religion and because she had not pursued the claim to Christianity since: at [26].
Similarly, the Authority considered and dismissed the claim in the Applicant’s 23 February 2016 statement to fear harm from the Karuna group in Sri Lanka. It reasoned this was because, in her 24 January 2017 interview, the Applicant had stated it was because of the interpreter that claim was made, and this was not her intention and she had not pursued the claim since: at [27].
The Authority noted conflicting evidence given by the Applicant: about prior employment at [28] and about her sister’s whereabouts at [29].
At paragraphs [30] to [39], the Authority considered the Applicant’s claim to fear harm as a young, female Tamil person.
There, the Authority considered the detail of the Applicant’s claims and said that it had regard to country information including a 2017 report on Sri Lanka by the Australian Department of Foreign Affairs and Trade (DFAT). The Authority was not satisfied that there was a real chance that the Applicant will suffer harm for reasons of her race as a Tamil if she returned to Sri Lanka because the security situation had improved dramatically in the north and the east. The Applicant’s family was in the northern province, there was evidence her family continued to live in Sri Lanka and no evidence they had been harmed by the Sri Lankan authorities: at [32].
In relation to the Applicant’s claims to fear rape and other physical harm by the Sri Lankan Army, the Authority referred to country information including the 2017 DFAT report and acknowledged that violence against women occurred throughout Sri Lanka and also noted DFAT’s assessment that women throughout Sri Lanka face a high risk of societal discrimination and violence, particularly domestic or intimate partner violence and there are few support mechanisms available to women in those circumstances: at [34]. Having regard to both the country information and the Applicant’s circumstances, the Authority was not satisfied that there was a real chance that the Applicant would be physically or sexually assaulted or suffer any other harm if she returned to Sri Lanka for reasons of her ethnicity, political opinion, or imputed political opinion or her members of a particular social group being a young single Tamil woman: at [38].
At paragraphs [40] to [43], the Authority considered the evidence before it about the Applicant’s departure from Sri Lanka and country information (the 2017 DFAT report) in the context of whether she would be harmed on return having claimed asylum in Australia. The Authority found that the Applicant had been consistent in her evidence that she departed Sri Lanka lawfully from the airport in Colombo and flew to Malaysia on a tourist visa. It considered the processing upon her return but was not satisfied that the Applicant would face a real chance of harm from the Sri Lankan authorities, police, criminal investigation department, the army or others due to being a failed asylum seeker or Tamil asylum seeker, whether then or in the future, if she were to return to Sri Lanka: at [43].
The Authority found that the Applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Migration Act1958 (Cth) (the Act) and therefore did not meet s.36(2)(a): at [44]- to [45].
The Authority’s complementary protection assessment is found at [46] to [51] of the reasons. It noted there that the thresholds for the “real risk” element in the complementary protection criterion at s.36(2)(aa) is the same as the “real chance” test in the refugee criterion at s.36(2)(a). And, on account of its earlier findings, was satisfied that there was not a real risk that the Applicant would suffer harm if she returned to Sri Lanka and did not meet s.36(2)(aa): at [49] to [50].
Finally, the Authority considered the remaining criteria and determined that at ss.36(2)(b) and (c) did not apply.
APPLICATION BEFORE THE COURT
On 23 November 2017, the Applicant filed this application for judicial review of the Authority’s decision. The application identified 2 grounds of review in the following terms:
1.The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the Applicant was not previously aware, and in the alternative the Second Respondent denied procedural fairness because the Authority’s reasoning departed from the Department’s reasoning, resulting in a practical injustice to the Applicant.
2.The Second Respondent constructively failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.
On 7 December 2017, a response was filed on behalf of the First Respondent contending that the decision of the Authority was not affected by jurisdictional error.
Various procedural orders were then made. Most recently, on 15 February 2024, the Court fixed the matter for final hearing on 22 May 2024 and by those orders, the Applicant was directed to file and serve any amended application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which she sought to rely by 4.00pm on 23 April 2024. The Applicant did not file and serve any further materials in accordance with the 15 February 2024 orders or at all.
The First Respondent filed written submissions and a list of authorities on 15 May 2024 as directed. They also prepared, filed and served a court book of relevant documents.
The matter proceeded to final hearing before the Court as presently constituted on 22 May 2024. The Applicant appeared in person and the First Respondent was represented by counsel. At the outset of the hearing, the process and role of the Court was explained to the Applicant with the assistance of an interpreter. It was explained to the Applicant that they would be given the opportunity to make oral submissions at the hearing, and they elected to do so (also with the assistance of the interpreter).
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163, 175 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
GROUND 1
By her first ground, the Applicant articulated alternative contentions of error on the part of the Authority. Both limbs alleged a denial of procedural fairness.
The primary limb alleged that the Authority failed to alert the Applicant to new issues arising before it of which she was not previously aware. The Court was unable to identify any new issues said to arise on review. The Applicant was afforded opportunities to elaborate on this ground both in advance of and at the hearing. An inspection of the court book disclosed that the claims made in her visa application and as articulated in submissions to and before the delegate were the same as those considered by the Authority. Absent identification of any new issues, this limb of the first ground must fail.
Understood to be subject of the alternative limb to the first ground was the proposition that the Authority found differently to the delegate on the underlying issue about whether the Applicant had departed lawfully from Sri Lanka. In this respect, it is true that the Authority concluded that the Applicant had departed Sri Lanka lawfully (at [40]) whereas the delegate had found that the Applicant departed illegally without a passport.
The Authority was entitled to make a different finding on the evidence before it in respect of the Applicant’s departure from Sri Lanka. There was no obligation on the Authority to notify the Applicant that it was contemplating a different finding to that of the delegate. The provisions at Part 7AA are taken to be an exhaustive statement of the rules of natural justice and there was no denial of procedural fairness in this respect: DBE16 v Minister for Immigration and Border protection [2017] FCA 942 and DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551.
In any event, the different findings did not affect the outcome as both decision-makers reached the same conclusion that the Applicant did not meet the thresholds at ss.36(2)(a) and/or (aa). It follows that, even if there were a jurisdictional error on account of a different finding on the facts (which is not established) the error was immaterial to the outcome.
GROUND 2
By her second ground, the Applicant said there was a constructive failure to conduct the review in accordance with the Authority’s statutory obligations at ss.473CC(1) and 473DC. The Applicant contended that failure to do so arose where the Authority failed to inform her of issues arising on review and otherwise by failing to consider its discretion to get new information.
The starting point is the overarching guidance as to the Authority’s functions, provided at the simplified outline to Part 7AA of the Act: see s.473DB. There, the intended operation is made clear: the Authority does not hold hearings and is required to review referred decisions “on the papers” other than in exceptional circumstances. Only in exceptional circumstances may the Authority consider new material or invite referred applicants to provide, or comment on, new information at an interview or in writing.
Section 473DC expressly provides a power for the Authority to get documents or information that were not before the Minister or delegate and the Authority considers may be relevant (which may be orally or in writing at interview). The provision also expressly clarifies the Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
To the extent that this ground repeats or overlaps with the contention subject of the first ground then, as reasoned above, there is no identification of new issues arising before the Authority in the course of its review. Further, there was no obligation on the Authority to put the Applicant on notice of or invite submissions about any adverse findings it proposed to make contrary to that of the delegate. There was no contention of unreasonableness or error in the Authority’s decision not to receive the Applicant’s submissions which the Authority correctly found did not include new information: at [6]. There was no discernible error in this respect.
The Authority considered the Applicant’s request for an oral interview and declined it. The Authority provided reasons for its decision not to provide an opportunity for an oral interview or hearing and why it decided not to request new information from the Applicant (at [7] and [8]). The Applicant has not articulated why there were exceptional circumstances or otherwise as to why the Authority erred in this respect. On what is before the Court, it is apparent that the Authority correctly understood the statutory provisions and there is no demonstration of a failure to perform its statutory functions in this regard.
For completeness, the Authority’s task pursuant to s.473CC(1) was to review a decision of the delegate referred to it under s.473CA. The Authority was required to conduct the review de novo or afresh and was not confined to correction of error in the delegate’s decision: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [17]. In my view, as the summary of the Authority’s reasons (above) discloses, the Authority thoroughly addressed each of the Applicant’s claims and provided clear and cogent reasons for its findings. I do not discern an actual or constructive failure on the part of the Authority to perform its task as claimed.
DISPOSITION
For the above reasons, neither ground succeeds and the application must be dismissed.
Costs
In the event that the application was dismissed, the First Respondent sought costs in the fixed amount of $5,000. The Applicant contended that she could not afford this amount.
The Court has a wide discretion to make costs orders. For present purposes, the Applicant’s submission that she would have difficulty in affording this amount is accepted. The Applicant was on notice of the likely costs consequences if her judicial review application was unsuccessful: per the notation to the Court’s orders of 15 February 2024. However, the Applicant did not file any written materials or otherwise engage with the Court’s orders in an effort to prosecute her claim which the First Respondent was put to the expense of defending. The sought amount of $5,000 represents a significant reduction on the event based scale amount for final hearing: see Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
In all of the circumstances, I am satisfied, that it is appropriate to order costs fixed in the amount of $5,000.
It will be a matter for the Applicant to engage with the First Respondent about payment options.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 27 May 2024
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