FMM17 v Minister for Immigration
[2019] FCCA 1500
•12 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FMM17 v MINISTER FOR IMMIGRATION | [2019] FCCA 1500 |
| Catchwords: WORDS AND PHRASES – “claim” – “a claim for protection in a country other than Australia”. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27; (2009) 83 ALJR 1152; (2009) 73 ATR 256; (2009) 260 ALR 1; [2009] ATC 20-134 ASF17 v Minister for Immigration & Border Protection [2018] FCA 1149 ASF17 v Minister for Immigration & Border Protection [2017] FCCA 2498 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; (1997) 71 ALJR 312; (1997) 141 ALR 618; (1997) 9 ANZ Insurance Cases 61-348 Federated Engine-Drivers & Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285 |
| Applicant: | FMM17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 699 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 3 May 2018 |
| Date of Last Submission: | 3 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 12 June 2019 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the Respondent: | Mr P.M Knowles |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
(1)That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 699 of 2017
| FMM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, by application filed on 14 December 2017, seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant a Temporary Protection (subclass 785) visa (“Temporary Protection Visa”). The Delegate’s Decision appears at Court Book (“CB”) 174-191.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 23 September 2009: CB 1;
b)on 11 June 2010 the applicant’s first Independent Merits Review (“IMR”) was refused, however due to a subsequent decision of the High Court the applicant was allowed another review by an Independent Merits Reviewer (“IM Reviewer”): CB 1;
c)on 20 February 2012 the applicant was again refused a visa by an IM Reviewer, and the applicant’s application for judicial review to the Federal Magistrates Court, and a subsequent appeal to the Federal Court, were both dismissed: CB 1;
d)on 5 April 2013 the applicant’s migration agent sent a request to the Minister to “lift the bar” under s.46A of the Migration Act to enable the applicant to apply for a protection visa under the complementary protections provisions of the Migration Act enacted subsequent to the IMR refusals: CB 1-6;
e)the applicant was informed on 23 August 2017 that the Minister had exercised the discretion in s.46A of the Migration Act to enable the applicant to make an application for the Temporary Protection Visa: CB 119-120;
f)on 13 September 2017 the applicant lodged his Temporary Protection Visa application making the following claims:
i)he left Sri Lanka in 1988 after both his parents were killed during a military operation, then lived in France until 2000 when he departed and returned to Sri Lanka, before leaving again to the “safety” of India, but then returned to Sri Lanka in 2004 because he thought the civil war would soon end: CB 144;
ii)around November 2006 the applicant was beaten by passengers on a bus returning from a temple in the south of Sri Lanka and was handed over to police as a suspected cadre of the Liberation Tigers of Tamil Eelam (“LTTE”) and detained for 14 days: CB 145;
iii)on 19 May 2009 after the death of an LTTE leader, the applicant was arrested in Colombo and detained for three days: CB 145;
iv)he had been detained “due to the fact that [he is] a Tamil from Jaffna”: CB 145;
v)he will be harmed because he left Sri Lanka illegally, and he will be interrogated for information and subjected to “cruel, inhuman and degrading treatment”: CB 144;
vi)he fears harm because his details were released in an inadvertent data breach in 2014: CB 144; and
vii)he has been tortured before, and because he is a returning Tamil the Sri Lankan authorities will suspect he is an escaped LTTE cadre and he will be subjected to a forced vetting and rehabilitation process that no other failed asylum seekers are subject to upon return: CB 146;
g)on 16 October 2017, the applicant attended an interview with the Delegate while a letter to the applicant’s migration agent was also sent pursuant to s.57 of the Migration Act inviting him to comment on the following information:
i)a statement in the Temporary Protection Visa application that he had applied for a protection visa in France, and that the effect of the French application for a protection visa could be that the applicant was an “excluded fast track review applicant” because he had made an unsuccessful application for protection in a country other than Australia: CB 164; and
ii)findings made in an earlier IMR which did not accept that the applicant was:
A.attacked on a bus trip back from a temple, or arrested on the way back from Colombo in 2006, or detained in Boosa jail;
B.beaten and burned by the police in 2007 or 2008;
C.deliberately mistreated whilst in a Sri Lankan hospital;
D.pressed to spy for the Indian Army; and
E.at risk because his wife owned 800 grams of jewellery; and
iii)the previous IMR findings: CB 165;
h)the applicant’s migration agent responded on 23 October 2017 stating that the applicant’s claims for protection related to events that occurred after his deportation from France in December 2002, and, therefore, he should not be excluded from the review process: CB 169-170; and
i)on 22 November 2017 the Delegate’s Decision was to refuse the application for a Temporary Protection Visa: CB 171.
Delegate’s Decision
In the Delegate’s Decision the Delegate:
a)summarised the applicant’s claims for protection and the submissions of the applicant’s migration agent in response to the invitation to comment: CB 175-176;
b)referred to the “Natural Justice” letter in which, in accordance with s.57 of the Migration Act, the applicant was put on notice of adverse information and invited to comment, and found that the applicant’s response did not provide any further substantive information that would lead the Delegate to consider that the previous IMR findings were incorrect: CB 177;
c)affirmed the previous IMR findings that the applicant was not:
i)attacked on a bus trip back from a temple in the south of Sri Lanka;
ii)arrested on the way back from Colombo in 2006;
iii)detained in Boosa jail;
iv)beaten and burned by the police in 2007 or 2008;
v)deliberately mistreated whilst in a Sri Lankan hospital;
vi)pressed to spy for the Indian Army; or
vii)at risk because his wife owned 800 grams of jewellery: CB 177;
d)accepted the applicant was a Tamil Hindu from Jaffna, who had previously resided in France: CB 177;
e)confirmed the applicant was in immigration detention when the data breach occurred and that the applicant's name, date of birth, nationality, gender, the reason for and location of his detention, and whether he had any family members in detention was disclosed as a result of the data breach, and while accepting that the Sri Lankan authorities may have accessed the information, and that in conjunction with the applicant's lengthy period in Australia, that that may mean the Sri Lankan authorities would suspect, or be aware, that the applicant had departed Sri Lanka illegally and subsequently claimed asylum in Australia: CB 178;
f)referenced country information regarding the applicant’s claim of fear arising from an imputed association with the LTTE, and found that the applicant’s chance of being imputed with an LTTE connection was remote, particularly where the applicant was not politically active in Sri Lanka and did not have a political profile of any kind, and that being Tamil in Sri Lanka was in itself not a reason for the applicant to be imputed with an LTTE connection, and the Delegate was satisfied the applicant did not hold a well-founded fear of persecution for this reason: CB 179;
g)noted the applicant had not lived in Jaffna since 1988, and that country information refers to the improved situation in the north of Sri Lanka, though it does indicate that Tamils from the north and east of Sri Lanka may face a degree of discrimination or harassment, and do not have the same opportunities as Sinhalese Sri Lankans: CB 180;
h)noted there was no evidence that the applicant was of interest to the Sri Lankan authorities for any reason when he left the country, and that as he does not have real or perceived links to the LTTE, the chance of him facing persecution for this reason was remote even if there was an ongoing military presence in the north and east of Sri Lanka, so that the applicant did not have a well-founded fear of persecution for being a Tamil from the north of Sri Lanka or for being from an area previously controlled by the LTTE, and that while accepting the applicant may be at risk of discrimination if he were to return to Sri Lanka, the level of discrimination would not amount to serious harm: CB 180;
i)accepted that the applicant may have been arrested on some occasions, but did not accept, consistent with the IMR findings, that the applicant had a profile or any connection to the LTTE beyond being a Tamil male, or a Tamil male from former LTTE-controlled areas, and was satisfied that the applicant did not have a well-founded fear of persecution in the foreseeable future for being a Tamil from the north of Sri Lanka, or for any imputed political opinion or LTTE connection due to being a Tamil from the north of Sri Lanka: CB 181;
j)when considering the consequences of the data breach, noted the relevant country information relied on its earlier findings that the applicant was not a person of interest to the authorities for any reason when he left Sri Lanka, and thus was not satisfied that the applicant would face any more scrutiny than any other Sri Lankan Tamil that had departed Sri Lanka since 2009, and that whilst the applicant may be questioned upon return to Sri Lanka due to claiming asylum in Australia, he would not face a real chance of serious harm: CB 181-183;
k)stated there is no information to suggest that Tamils who have lived or stayed abroad are facing serious harm at Colombo airport or in their home areas on their return to Sri Lanka simply due to the time spent out of Sri Lanka, for being a failed asylum seeker, or for any perceived links to the LTTE associated with being a failed asylum seeker: CB 183;
l)noted that the applicant has claimed that the real chance of persecution is not limited to the airport clearance process, but also in renewing his identity card once resettled, but on the basis of the country information the Delegate was satisfied that the applicant would not be at risk of serious harm when applying for a new identity card once resettled in Sri Lanka: CB 183;
m)gave separate consideration to the questioning the applicant would face upon return to Sri Lanka on account of his illegal departure, and the situation the applicant would face on account of his psychological problems when considering the non-refoulement obligations under s.36(2)(aa) of the Migration Act: CB 184-185;
n)extensively discussed country information on prison conditions in Sri Lanka, and noted that the applicant’s psychological report was dated in 2010, and that no indication was provided as to whether the applicant is still receiving any counselling: CB 185; and
o)found that the applicant was an “excluded fast track review applicant” as he had made a claim for protection in a country other than Australia that was refused by that country, being France, and found that s.5(1)(a)(iii) of the Migration Act applies regardless of the time that has elapsed since the protection claim assessment in another country or any differences in the protection claims or circumstances that were considered by the other country: CB 187.
Judicial Review Application
The single ground of the Judicial Review Application is as follows:
After coming out of France I have faced the same difficulties in Sri Lanka that’s the reason I sought Asylum in Australia. I feel unfair that Australian Government considering that france rejecting my application as basis for being considered and excluded fast track applicant.
Accompanying the Judicial Review Application was an affidavit sworn 14 December 2017 to which the applicant annexed a copy of the Delegate’s Decision.
On 14 February 2018 the applicant was afforded an opportunity by a Registrar of this Court to file an amended Judicial Review Application, any further supporting affidavits and a written outline of submissions prior to the matter being heard on 3 May 2018. The applicant did not avail himself of this opportunity. At hearing the Court, having explained to the applicant that to be successful he must tell the Court of any alleged jurisdictional error in the Delegate’s Decision, invited the applicant to make oral submissions in support of the Judicial Review Application.
Applicant’s submissions
With the assistance of an interpreter the applicant made the following submissions at hearing:
a)he is very frustrated and disappointed about the Delegate’s Decision because lots of other “boat mates” have been granted visas, he is suffering and praying, and asking “why this has happened” and “why the officer didn’t take my application in not proper consultation”: Transcript, p.3;
b)it is an unfair decision, he has never been through this amount of suffering, since 2008 he has been separated from his family and children, having to repeatedly explain to everybody what he has gone through back in his country which is a “great suffocation” and torture, but “they” decide against him every time, so he sincerely requests the Court to consider the Judicial Review Application: Transcript, p.3;
c)the main reason for the Delegate’s Decision was that the applicant lived in France, but he knows that lots of “boat mates” who have come from India, were deported from the United Kingdom and Germany, and they lived overseas, but they have been issued visas, but for the applicant, because he lived in France they rejected his application: Transcript, p.3;
d)the second time when the officer reviewed his case she was “obviously” taking revenge on him: Transcript, p.4;
e)in response to a question as to what legal error he was complaining of in the Delegate’s Decision, the applicant said he did not have anything to “tell” about legal errors: Transcript, p.4; and
f)he is not disputing the law, but he personally feels that there is no clarity as lots of other “boat mates” are enjoying the life here happily, travelling overseas, and only he has been suffering like this: Transcript, p.9.
Minister’s submissions
The Minister made the following submissions:
a)the one ground of review focuses upon the Delegate’s finding that the applicant was an “excluded fast track review applicant”, however this raises two preliminary issues:
i)that the Delegate considered the applicant’s claims on the basis that he was a “fast track applicant”; and
ii)that there is a question as to this Court’s jurisdiction to review the Delegate’s Decision;
b)a “fast track applicant” is defined in s.5 of the Migration Act: see [16] below, and in s.6 of Legislative Instrument IMMI 17/015 (“Instrument”) as a “person specified by reference to their Department of Immigration and Border Protection Person Identification Digit in Schedule 1 to this instrument is a fast track applicant”, and the applicant has a “Person Identification Digit” included in Sch.1 of the Instrument, thus the Delegate was correct to assess the applicant’s Temporary Protection Visa application on the basis he was a fast track applicant;
c)this Court does not have jurisdiction in relation to “primary decisions”, a “primary decision” including a privative clause decision or purported privative clause decision that has been or may be referred for review under Part 7AA of the Migration Act;
d)as the Immigration Assessment Authority (“IAA”) has no jurisdiction to review the Delegate’s Decision, it follows that the Delegate’s Decision is not a “primary decision” and this Court has jurisdiction to review the decision: ASF17 v Minister for Immigration & Border Protection [2017] FCCA 2498 (“ASF17”) at [18] per Judge Smith (affirmed on appeal in ASF17 v Minister for Immigration & Border Protection [2018] FCA 1149);
e)the only question is whether the operation of the exclusion in Migration Act s.5(1)(a)(iii) of the definition of “excluded fast track review applicant” applies in circumstances where the previous unsuccessful overseas protection application did not consider all of the claims now raised in the Temporary Protection Visa application;
f)there is nothing inconsistent with the text or purpose of s.5(1)(a)(iii) of the Migration Act in excluding from review a person who had already had two opportunities to make a claim for protection, even if the factual basis for those claims were different, and it would be surprising if there was such a limit because it could easily be circumvented or the restriction could easily be circumvented by an applicant making one single different factual claim to that previously considered, and thereby rendering the restriction meaningless; and
g)the text of the definition of “excluded fast track review applicant” is clear and unambiguous, the exclusion in s.5(1)(a)(iii) of the Migration Act does not refer to any requirement for there to be a congruency between the claims in the earlier application and the claims in the later application, further the context (and in particular the similar exclusion in s.5(1)(a)(ii) of the Migration Act) indicates that the exclusion is intended to capture circumstances where a person makes repeat applications of a certain type (that is, claims for protection), and the exclusion therefore does not depend on the specific factual matters advanced in support of that application and such a view is confirmed when one has regard to the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (“Migration and Maritime Powers Bill”) at [717]-[718] (“Explanatory Memorandum”).
Consideration
It is the first duty of every Court to determine whether or not it has jurisdiction: Federated Engine-Drivers & Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285; CLR at 415 per Griffith CJ, 428 per Barton J and 454 per Issacs J; Re Boulton; Ex parte Construction, Forestry, Mining & Energy Union (1998) 73 ALJR 129; (1998) 85 IR 468, ALJR at 133 per Kirby J.
The jurisdiction that this Court may exercise in migration decisions is one that is limited to applications for judicial review, and specifically limited by s.476 of the Migration Act.
There are two broad issues in the proceedings:
a)first, whether the applicant is an “excluded fast track review applicant”; and
b)second, whether there was any jurisdictional error that affected the Delegate’s Decision.
It is necessary to determine both of those issues, but the Court’s jurisdiction only arises in respect of the Delegate’s Decision if the applicant was an “excluded fast track review applicant”.
The Court’s jurisdiction under s.476 of the Migration Act is only in respect of “migration decisions” and not in respect of decisions known as “primary decisions”. Section 476(4) of the Migration Act sets out the meaning of a “primary decision” as follows:
primary decision means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b)that would have been so reviewable if any application for such review had been made within a specified period; or
(c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).
A “fast track decision” is not reviewable either under Pts.5 or 7 or s.500 of the Migration Act: Migration Act, ss.338(1)(d), 411(2)(c) and 500(3).
A “fast track decision” is defined under s.5(1) of the Migration Act to mean a decision to refuse to grant a protection visa to a “fast track applicant”, other than a decision to refuse to grant a protection visa for a number of specified reasons not relevant here.
A “fast track applicant” is defined by s.5(1) of the Migration Act to mean:
fast track applicant means:
(a)a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination; or
(b)a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).
An “unauthorised maritime arrival” is defined by s.5AA(1) of the Migration Act as follows:
(1)For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a)the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section;
(b)the person became an unlawful non-citizen because of that entry; and
(c)the person is not an excluded maritime arrival.
There is no dispute that the applicant is an unauthorised maritime arrival.
On 2 September 2015, the applicant was given written notice under s.46A(2) of the Migration Act determining that s.46A(1) did not apply to an application by him for a protection visa. The applicant subsequently made a valid application for a protection visa in accordance with the determination. For that reason, the applicant was a fast track applicant within the meaning of s.5(1) of the Migration Act. Further, the Delegate’s Decision was to refuse to grant the applicant a Temporary Protection Visa, and was not made relying on ss.5AH(2) or 36(1B), (1C) or (2C)(a) or (b) of the Migration Act, and was therefore a fast track decision.
The next step in this legislative scheme would ordinarily be that the Delegate’s Decision be referred to the IAA under pt.7AA of the Migration Act. Section 473CA provides:
The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.
A “fast track reviewable decision” is defined under s.473BB of the Migration Act to mean:
(a)a fast track decision in relation to a fast track review applicant; or
(b)a fast track decision determined under section 473BC;
but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.
…
Neither ss.473BC nor 473BD of the Migration Act applies here. Thus, the question is whether the applicant is a fast track review applicant. A fast track review applicant is defined in s.5(1) of the Migration Act to mean “a fast track applicant who is not an excluded fast track review applicant”. And thus the Court returns to the first issue set out at [11(a)] above.
An “excluded fast track review applicant” means a fast track applicant:
(a) who, in the opinion of the Minister:
(i)is covered by section 91C or 91N; or
(ii)has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or
(iii)has made a claim for protection in a country other than Australia that was refused by that country; or
(iv)has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or
(vi)without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or
(aa)who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:
(i)has no plausible or credible basis; or
(ii)if the claim is based on conditions, events or circumstances in a particular country – is not able to be substantiated by any objective evidence; or
(iii) is made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia; or
(b)who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(a).
The Delegate referred to the uncontested fact that the applicant had previously sought protection in France, and put to the applicant that the fact that the applicant had previously sought protection in France meant that he was an “excluded fast track review applicant”, and that this would exclude him from review by the IAA.
The applicant’s migration agent made submissions to the Delegate stating the events giving rise to the applicant’s present claims for protection occurred after the applicant had been removed from France and that he should not be considered to be an “excluded fast track review applicant”: CB 187.
At CB 187 (footnote omitted) the Delegate, when referring to the applicant’s previous asylum claim in France, said as follows:
The applicant indicated on his recent TPV application 866 Form lodged 13 September 2017 that he had applied for refugee status or protection previously in France. This information was also provided during his previous IMR hearings and the applicant also confirmed the aforementioned information in his TPV interview held on 16 October 2017. The applicant has not provided the date that he made the aforementioned application for protection however he has stated previously that he resided in France from approximately 1988 until 2000/2002. The applicant stated in his recent 2017 Protection Visa application that he was refused protection in France and he also confirmed this information within his recent TPV interview, stating that he was deported from France to Sri Lanka following his unsuccessful application for asylum.
The Delegate concluded at CB 187:
In assessing the aforementioned information I note that Section 5(1)(a)(iii) applies regardless of the time that has elapsed since the protection claim assessment in another country or any differences in the protection claims or circumstances that were considered by the third country.
The Delegate was of the view that the applicant was an “excluded fast track review applicant” pursuant to s.5(1)(a)(iii) of the Migration Act. If the Delegate was correct in concluding that the applicant was an “excluded fast track review applicant” then, as stated in ASF17 at [18] per Judge Smith:
That means that he is not a “fast track review applicant”. For that reason, the decision by the delegate did not fall within s 473CA of the Act and was not referred to the IAA under pt 7AA of the Act. This means, in turn, that the delegate's decision was not a “primary decision”, and that this Court has jurisdiction in respect of it.
The applicant’s representative stated that the applicant’s particular claims related to the applicant illegally departing Sri Lanka at the end of the civil war in 2009, and his being a Tamil from the north of Sri Lanka, and thus he should not be an “excluded fast track review applicant”, while also noting the implications of the data breach were such that the Minister made an undertaking to consider the data breach in the “normal processes,” and the “normal processes” included the review process.
In the applicant’s Judicial Review Application he states it “was unfair” that the basis for his being an “excluded fast track review applicant” was that he had had protection claims assessed previously in France. The applicant states that when he returned from France he faced the “same difficulties in Sri Lanka”.
If the applicant is an “excluded fast track review applicant” the Court need only determine if the Delegate’s Decision is affected by some jurisdictional error. If the applicant is in fact not an “excluded fast track review applicant” this Court will not have jurisdiction.
In order to determine if the applicant is an “excluded fast track review applicant” the Court needs to determine if the applicant “has made a claim for protection in a country other than Australia that was refused by that country”: Migration Act, s.5(1)(a)(iii).
The question is one of statutory interpretation. In interpreting a statute to determine its true meaning a court begins with a consideration of the text, which must be read in context and having regard to the statutory purpose or object: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27; (2009) 83 ALJR 1152; (2009) 73 ATR 256; (2009) 260 ALR 1; [2009] ATC 20-134 at [46]-[47] per Hayne, Heydon, Crennan and Kiefel JJ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; (1997) 71 ALJR 312; (1997) 141 ALR 618; (1997) 9 ANZ Insurance Cases 61-348, CLR at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. The central task is to discern the meaning of the legislative text, and give effect to the identified purpose, if it is one which is reasonably open on the text. The interpretation best open on the text which achieves the purpose or object of the statute is to be preferred to each other interpretation (even if the purpose or object is not expressly stated in the text): Acts Interpretation Act 1901 (Cth), s.15AA (“Acts Interpretation Act”).
There does not appear to be any judgment of this Court, the Federal Court (either at first instance or on appeal to the Full Court), or the High Court, concerning the meaning of that phrase in s.5(1)(a)(iii) of the Migration Act, and in particular of the sub-phrases “a claim” and “a claim for protection”. Indeed, there is very little case law concerning what constitutes “a claim” or “a claim for protection” generally in relation to cases under the Migration Act. And, what case law there is concerning a claim or claims for a protection visa is not specific to a statutory provision concerning those words, or similar words, but is, rather, a more generic discussion of what constitutes a claim or claims.
In SZURJ v Minister for Immigration & Border Protection & Anor [2016] FCCA 1771; (2016) 312 FLR 345 (“SZURJ”) this Court discussed what might constitute a “claim”, “integers of a claim” and “evidence”, but in relation to what might constitute a claim in particular the Court in SZURJ at [18]-[20] per Judge Manousaridis said as follows (footnotes omitted):
18 The expression “integers [or integer] of a claim” often finds itself in the company of two other expressions with which it may be contrasted. These expressions are “claim”, on the one hand, and “evidence”, on the other. For example, in Htun v Minister for Immigration and Multicultural Affairs, Allsop J (as his Honour then was) said that the “claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend”, and that was “to be distinguished from errant fact finding”. Another example is Tran v Minister for Immigration & Multicultural & Indigenous Affairs where the Full Federal Court held the primary judge was correct to apply to a review by the Administrative Appeals Tribunal of a deportation order under s 200 of the Migration Act 1958 (Cth) Act (Act) the principle that the Tribunal “is required to deal with all integers of an applicant’s claim. It is not required to refer to every piece of evidence placed before it”.
19 What distinguishes a “claim”, “integers [or integer] of a claim”, and “evidence” from each other? In any given case, a “claim” may be taken to denote all alleged facts on which an applicant relies for claiming he or she is entitled to a Protection visa (alleged facts). The expression “integers of a claim”, on the other hand, may be taken to denote those of the alleged facts which, if the Tribunal were satisfied exist, ought to lead the Tribunal to conclude the applicant has satisfied the criteria for the granting of a Protection visa prescribed by the Act (relevant alleged facts). They may be taken to be the equivalent of the “material questions of fact” referred to in s 430(1)(c) of the Act. The relevant alleged facts may or may not wholly coincide with the alleged facts. An “integer of a claim” denotes one meaningful subset of the relevant alleged facts which, in combination with one or more other meaningful subsets of the relevant alleged facts, ought to lead the Tribunal to conclude the applicant has satisfied the criteria for the granting of a Protection visa. One subset of relevant alleged facts may be taken to be the equivalent of a material question of fact within the meaning of s 430(1)(c) of the Act. Finally, “evidence” denotes the material, considered alone or in combination with other material, on the basis of which it is reasonably open to the Tribunal to be satisfied or not be satisfied that one or more relevant alleged fact exists.
20 None of the expressions “claim”, “integers [or integer] of a claim”, and “evidence” is mentioned in the provisions of the Act that prescribe the relevant criteria for the grant of a Protection visa. Their use, however, serve important purposes. One purpose is to provide a relatively well-defined vocabulary that directs attention to matters that are relevant to determining whether the Tribunal has discharged its obligation under s 414 of the Act to review the relevant decision. Take the words “claim” and “evidence”. They direct attention to all of the allegations of fact and the evidence - in short, all of the information – on which an applicant relies for the grant of a Protection visa. It is the duty of the Tribunal to consider all of this information …
In SZURJ the Court goes on to discuss what might constitute an integer of a claim in more detail, and the Court notes that in MZANX v Minister for Immigration & Border Protection & Anor [2016] FCCA 2564; (2016) 314 FLR 461 at [25] per Judge Wilson the Court discussed, and followed what was said in SZURJ in relation to an integer of a claim. For present purposes it is unnecessary to examine in further detail what was said in SZURJ, save to say that:
a)the description of what constitutes a “claim” in SZURJ at [19] per Judge Manousaridis is one with which the Court agrees within the context of what was there being discussed;
b)the description of “integers of a claim” in SZURJ at [19] per Judge Manousaridis was dealing with those issues (and seemingly only those issues) which if the Tribunal was satisfied existed, ought to lead the Tribunal to conclude that the applicant had satisfied the criteria for the grant of a protection visa, but in the view of the Court as presently constituted that is arguably too narrow a prescription, and it is arguable that the integers of a claim have a broader meaning, and could include sub-sets of a claim, that is sub-sets of alleged facts, which did not satisfy the criteria for a protection visa, but would still be integers of the claim, but not ones that lead to the grant of a protection visa and, in those circumstances, might appropriately be described as “failed integers of a claim”; and
c)the discussion in SZURJ (and generally in the cases there referred to) is a general discussion not related to a particular provision of the Migration Act where the terms “claim”, “claims”, “integers of a claim” or “evidence” are used. Indeed, on an examination of the Migration Act, so far as the Court can tell, the words and phrases:
i)“claim”, appears only in ss.5(1)(a) and (aa), 5AAA(2) and 423A;
ii)“claims”, does not appear other than in s.5AAA(1);
iii)“integer (or integers) of a claim”, does not appear at all; and
iv)“evidence”, appears only in ss.5AAA(2), 353, 420, 423A and 473F,
but in none of the above provisions apart from s.5(1)(a)(iii) and (iv) does the word “claim” appear in the context of a claim for protection in a country other than Australia. Thus, the use of the terms “claim”, “claims”, “integer (or integers) of a claim” and “evidence” either in the Migration Act or the cases referred to in SZURJ (none of which also deal with a claim for protection in a country other than Australia) are of assistance in determining the meaning of “claim” and “a claim for protection in a country other than Australia” in s.5(1)(a)(iii) of the Migration Act.
It follows that SZURJ is not directly on point because it does not discuss what a “claim” is in the context of s.5(1)(a)(iii) of the Migration Act, or for that matter, any other particular statutory provision of the Migration Act.
One can sometimes discern legislative purpose from extrinsic materials. In this case, the Explanatory Memorandum:
a)at page 8 provides as follows:
A key component of the fast track assessment process is that fast track applicants will not be permitted to seek review from the RRT of their protection visa decisions. The Bill will instead, require the Minister to refer, as soon as reasonably practicable, certain decisions made in respect of fast track review applicants to the [Authority]. The Authority will conduct a limited review of these decisions.
There will also be fast track applicants who in turn, will be excluded fast track review applicants. After an assessment of their protection claims, excluded fast track applicants will be those who have found to have put forward claims that indicate they have been previously been refused protection, already have protection available elsewhere or have unmeritorious claims and as such, their cases suggest prompt resolution of their status should be a priority. Excluded fast track review applicants will not have access to any form of merits review. Excluding these applicants from merits review will stop unmeritorious claims being considered by the [Authority] which can lead to delays in departure and an inefficient and costly use of resources. Decisions made in relation to certain excluded fast track applicants who are identified as vulnerable can be referred to the [Authority] by way of a legislative instrument. All fast track applicants will continue to have access to judicial review.
b)in Sch.4 at Item 1 at [717]-[718] provides as follows:
717.Subparagraph (a)(iii) of this definition provides that an excluded fast track review applicant means a fast track applicant who, in the opinion of the Minister has made a claim for protection in a country other than Australia, that was refused by that country.
718.This provision captures those fast track applicants who have had their asylum claims assessed and refused in a third country and have now received a further assessment and refusal under Australia`s protection visa framework. It is the Government`s position that persons who have had the benefit of accessing protection determination procedures both overseas and in Australia should be excluded from further forum shopping where they have again had their application refused because merits review will unnecessarily delay the finalisation of their cases.
The phrase “a claim” in s.5(1)(a)(iii) of the Migration Act does not direct attention to the integers of a claim or the evidence in support of a claim, but rather the act of making a claim for protection itself. Because the phrase “a claim” appears in the larger phrase “a claim for protection in a country other than Australia” it therefore relates to the discrete act of making a claim for protection in another country. There is also nothing that indicates that the claim made in the other country needs to be the same (or similar) to the claim subsequently made in Australia, before an applicant becomes “excluded”, and in context, an “excluded fast track review applicant”. Had the Parliament intended that only the same, or a similar, claim for protection in another country be captured by s.5(1)(a)(iii) of the Migration Act resulting in an applicant becoming “excluded”, and therefore an “excluded fast track review applicant”, it might easily have said so by using the words “same or similar” in s.5(1)(a)(iii) of the Migration Act, and thereby having that provision read as “has made the same, or a similar, claim for protection in a country other than Australia that was refused by that country”.
The terms of the Explanatory Memorandum are, in the Court’s view, consistent with the above interpretation of s.5(1)(a)(iii) of the Migration Act, providing that the provision in the Migration and Maritime Powers Bill that became s.5(1)(a)(iii) of the Migration Act was intended to capture applicants who, otherwise without limitation “have had their asylum claims assessed and refused in a third country”: Explanatory Memorandum at [718].
When considering the evidence that was before the Delegate and the purpose of the introduction of the “excluded fast track review applicant” provisions the Court considers the Delegate was correct to conclude the applicant was an “excluded fast track review applicant”. The applicant:
a)had been the subject of unsuccessful IMRs in Australia; and
b)had unsuccessfully applied for asylum in France sometime in the period from 1998 to 2002, and had subsequently been deported from France.
In the above circumstances, the applicant is plainly an “excluded fast track review applicant” within the meaning of that term in s.5(1)(a)(iii) of the Migration Act. Further, the applicant himself stated in the grounds of review he was “suffering the same difficulties in Sri Lanka” following his deportation from France and “that’s the reason” he sought protection in Australia. In the Court’s view the applicant has confirmed he was seeking protection in Australia because he had been unsuccessful in obtaining protection in France, and thus, even if s.5(1)(a)(iii) of the Migration Act is restricted to excluding applicants who have made the same, or a similar, claim for protection in another country, the applicant would still fall within the meaning of the phrase “a claim for protection in a country other than Australia that was refused by that country” on a more restricted meaning of that phrase.
It follows from the above that:
a)the applicant is an “excluded fast track review applicant”; and
b)the Court has jurisdiction to review the Delegate’s Decision.
Consideration otherwise
The Delegate’s Decision may be impugned by reason of jurisdictional error which resulted in a decision in which the Delegate’s exercise or purported exercise of power exceeds, or fails to exercise, the authority or powers given to the Delegate under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. It is for the applicant to identify and establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
The applicant raised only one ground of review in his Judicial Review Application, and that ground challenged the finding in the Delegate’s Decision that the applicant was an “excluded fast track review applicant”. The Court has concluded that the Delegate’s Decision correctly concluded that the applicant was an “excluded fast track review applicant”. The Court was not asked to, nor referred to, any other jurisdictional error in the Delegate’s Decision.
At hearing the applicant’s oral submissions reflected his dissatisfaction with the Delegate’s Decision, and particularly so given the alleged outcomes of protection applications by what he described as “boat mates”. There was no evidence lead to indicate what was meant by the applicant’s submissions concerning the alleged outcomes of protection applications for the “boat mates”, and if it was asserted that there was some kind of jurisdictional error arising from a failure to have regard to the outcomes of other cases, then none has been proven. In the circumstances, the submissions are irrelevant and simply appeal to the Court to engage in a review of the merits of the applicant’s case which it cannot undertake: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
To the extent that the applicant may have complained about bias in his submissions at hearing, that allegation appears to be directed toward a female officer who conducted one of the IMRs in respect of the applicant: see [7(d)] above, and is not an allegation of bias in relation to the male Delegate who delivered the Delegate’s Decision.
To the extent that the applicant claimed that there was a jurisdictional error by reason of his not being afforded the normal process of review allegedly promised in relation to the data breach, the Court observes that the process followed, that is, the review of the data breach by the IMR and in the Delegate’s Decision: CB 177-178, is a normal process of review for a person in the applicant’s position, and as such the allegation that the normal processes were not followed is not made out, and no jurisdictional error arises in this respect: SZWAJ v Minister for Immigration & Border Protection [2016] FCA 1173 at [32] per Griffiths J.
The Court has independently, but not overzealously, considered whether the Delegate’s Decision might be affected by some other jurisdictional error: MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J. No discernible jurisdictional error in the Delegate’s Decision arises in the Court’s view.
Conclusion and orders
For the reasons set out above the Court has concluded that the Delegate’s Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 12 June 2019
5
18
4