FMQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1884
•18 November 2019
FEDERAL COURT OF AUSTRALIA
FMQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1884
Appeal from: FMQ17 v Minister for Home Affairs & Anor [2019] FCCA 1329 File number: VID 614 of 2019 Judge: O'CALLAGHAN J Date of judgment: 18 November 2019 Legislation: Migration Act 1958 (Cth) Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 144 FCR 1 Date of hearing: 8 November 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 37 Counsel for the Appellant: The appellant appeared in person with the aid of an interpreter Counsel for the First Respondent: M Hosking Solicitor for the First Respondent: Mills Oakley ORDERS
VID 614 of 2019 BETWEEN: FMQ17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
18 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The proceeding be dismissed.
3.The appellant pay the first respondent’s costs, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
This is a case that raises no issues of law, precedent or any other matter of general significance and involves three grounds of appeal, each of which is without any merit.
The appellant appeals from a decision of the Federal Circuit Court of Australia made on 23 May 2019, dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (the Authority), which affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (visa).
The appellant is a citizen of Sri Lanka. He arrived in Australia in October 2012 as a so-called “unauthorised maritime arrival” and participated in an entry interview.
Four years later, after the Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (the Act), the appellant made an application for a visa.
On 16 March 2017, the appellant participated in an interview.
On 8 June 2017, a delegate of the Minister found that the appellant did not meet the criteria in ss 36(2)(a) or (aa) of the Act, and therefore refused the appellant’s visa application.
Because of the timing of his arrival in Australia, and his status as a unauthorised maritime arrival, the appellant was deemed to be a “fast track applicant” under s 5(1) of the Act, and was therefore subject to the merits review framework and procedure set out in Part 7AA of the Act.
On 13 June 2017, the Department referred the delegate’s decision to the Authority for review.
On the same date, the Authority sent to the appellant a copy of its fact sheet and Practice Direction which noted, among other things, that the appellant could provide a written submission and new information to the Authority.
The appellant later provided a written submission to the Authority, which relevantly provided as follows:
Respected Sir/Madam
I had received your email regarding the visa rejection details. I can’t agree the reason for which you made the decision to reject my visa because of many things. The major fact is that for everyone who is standing outside, it may be a case of someone. For me it’s my life, so only I know the real situation which is happening over in srilanka. For your information I can attach you some of the important documents to prove my case is genuine. In the attached files you can see two photographs;
My Father’s Identity Card in France.
For my family it’s a huge life threatening issue to live over there in srilanka. Because of these problems my family is still running from place to place for a living.
So still I have the same serious threat to my life, if I go back there in srilanka. No one will love to die by knowing all these things. I want to live my life peacefully so that why I came here in Australia. And also please forgive my late reply. Thank you.
(Errors in original).
On 7 December 2017, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
The appellant claimed to have a well-founded fear of persecution in Sri Lanka, or to face a real risk of significant harm in Sri Lanka, on the basis that he is a Tamil and that he has an imputed pro-LTTE political opinion.
In addition, the material before the delegate and the Authority gave rise to further claims on the basis that the appellant also would return to Sri Lanka as a failed asylum seeker, and as a person who had departed Sri Lanka illegally.
In his statutory declaration provided with his visa application, and in his interview with the delegate, the appellant also made a number of claims relating to his past treatment by the Sri Lankan authorities.
In making its decision, the Authority had regard to the written submission provided by the appellant, set out at [10] above. The Authority noted, however, that the submission did not say why the delegate’s decision was incorrect.
The Authority also noted that it had received the document which the appellant said was a copy of his father’s French identity card. The Authority considered that this document, which was not before the delegate, was “new information” within the meaning of s 473DC(1) of the Act. However, pursuant to s 473DD of the Act, the Authority found that it was prevented from considering the new information, because it was not satisfied that:
·there were exceptional circumstances for considering the new information;
·the information could not have been provided to the delegate; or
·the information was not previously known and that, had it been known, the information may have affected the consideration of the appellant’s claims.
The Authority accepted some parts of the appellant’s claims, in particular that:
·the appellant was a citizen of Sri Lanka, even though he was born in India;
·the appellant’s family moved to Sri Lanka in June 2005;
·between June 2005 and September 2006, the appellant’s father was detained and mistreated by the Sri Lankan army and suffered a broken leg;
·in September 2006, the appellant’s family returned to India;
·in May 2012, the appellant’s family again returned to Sri Lanka; and
·in July 2012, after returning from India, the applicant was detained and questioned by Sri Lankan authorities.
The Authority did not, however, accept that:
·the appellant or his father were ever of interest to the Karuna Group;
·the appellant’s uncle was detained and treated badly by the Sri Lankan police in June 2012;
·two men burst into the appellant’s family home in July 2015 and threatened his father with guns;
·the appellant’s family home was ransacked in June 2015;
·the Sri Lankan authorities maintained an ongoing interest in the appellant in 2015; or
·the appellant or his father were suspected of having an ongoing relationship with the LTTE in 2006 or after 2012.
On the basis of these findings and relevant country information, the Authority found that the appellant did not face a real chance of serious harm in Sri Lanka by reason of his Tamil ethnicity or an imputed pro-LTTE political opinion. The Authority also found that the appellant did not face a real chance of serious harm in Sri Lanka by reason of being a failed asylum seeker, or having departed Sri Lanka illegally.
The Authority found that the appellant did not face a real risk of significant harm in Sri Lanka by reason of his illegal departure, or for any other reason.
On the basis of its findings, the Authority found that the appellant did not meet the criteria in ss 36(2)(a) or (aa) of the Act, and therefore affirmed the delegate’s decision.
The appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority’s decision on the following grounds:
1.The [Authority] constructively failed to review the [delegate’s] decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information
2.The [Authority] denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the [Authority] fell into error/denied the Applicant procedural fairness.
(Errors in original).
The primary judge gave a detailed account of the appellant’s claims, the delegate’s decision, the Authority’s decision, and the applicable principles, and rejected both grounds of appeal.
The appellant now seeks to appeal from the judgment of the Federal Circuit Court on the following grounds, which substantially replicate the grounds contended for below:
1.The Federal Circuit Court erred in not finding the [Authority] denied the [appellant] procedural fairness and/or made an error of law because the [appellant] was refused to represent his claims orally.
2.The Federal Circuit Court erred in not finding the [Authority] denied the [appellant] procedural fairness and/or made an error of law because the [Authority] constructively failed to review the delegate’s decision, denied the [appellant] procedural fairness in its failure to sufficiently raise critical matters with the [appellant] and/or extended to him a real opportunity to reply to adverse information.
At the hearing, counsel for the Minister, Mr M Hosking, agreed that the notice of appeal is to be taken as raising three grounds:
(1)the Authority erred because it did not invite the appellant to an interview;
(2)the Authority erred because it failed to consider clearly articulated claims or claims that arose from the material before it, such as to constitute jurisdictional error; and
(3)the Authority denied the appellant procedural fairness because it did not give him an opportunity to respond to adverse information.
Ground 1
There is no merit in ground 1. The primary judge correctly held that no error arose from the Authority’s decision not to invite the appellant to an interview. The Authority was required to conduct a review on the papers, without interviewing the appellant. Section 473DB(1) of the Act provides:
Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
The Authority did not have a duty to the appellant to invite him to attend an interview, even if the appellant had asked for one, which he did not. See s 473DC (2) of the Act, which provides:
The Immigration Assessment 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.
The purpose of such an interview is to enable the Authority to get “new information”, as defined in s 473DC(1) of the Act, as follows:
Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information)…
As is apparent from [10] above, nothing in the appellant’s written submission to the authority indicated that he had any “new information” to provide, other than the document which he said was a copy of his father’s identity card in France. Other than attaching that document, the submission did no more than reiterate in general terms that the applicant feared harm in Sri Lanka.
Ground 2
There is no merit in ground 2. The primary judge correctly found that the Authority constructively failed to review the delegate’s decision.
During the hearing, Mr Hosking took me in detail to each of the following:
(1)The appellant’s statutory declaration, and the claims he made in it (summarised at [17] and [18] above); and
(2)The Authority’s Decision and Reasons.
It is readily apparent from the Authority’s Decision and Reasons that the Authority considered each claim that was clearly articulated by the appellant, as well as each claim that clearly arose from the material. See NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 144 FCR 1 at 19, [60]. The Authority’s reasons are detailed and deal thoroughly and carefully with each of the appellant’s claims. I refer, without quoting or summarising, in particular, to [4], [11], [12], [15], [16]-[24], [27]-[29], [33]-[35] and [39] of the Authority’s Decision and Reasons, which deal with all the appellant’s claims.
No other claims were clearly articulated in, or clearly arose from, the submissions and materials provided to the Department. And no other claims were clearly articulated in, or clearly arose from, the appellant’s written submission to the Authority.
Ground 3
There is no merit in ground 3. The primary judge correctly found that the Authority did not deny the appellant procedural fairness by failing to raise critical matters with him, or to extend him an opportunity to respond to adverse information.
The Authority was not required to inform the appellant of specific reservations about the appellant’s case or to provide the appellant with an opportunity to respond. The Authority does have an obligation under s 473DE(1) to give the applicant particulars of certain “new information” which it has considered, or will consider. Sections 473DA and 473DE of the Act provide:
473DA Exhaustive statement of natural justice hearing rule
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
…
473DE Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i)has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii)at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b)is non‑disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
But, in this case, the only “new information” before the Authority was information given to the Authority by the appellant, to which s 473DE(1) did not apply. And, in any event, the Authority did not rely that “new information” in conducting its review. Accordingly, the Authority had no obligation to give the appellant an opportunity to comment on the information on which it relied.
The appeal must therefore be dismissed with costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 18 November 2019
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