FPU17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

FPU17 v Minister for Home Affairs [2019] FCA 1727

Appeal from: FPU17 & Anor v Minister for Immigration & Anor [2018] FCCA 1804
File number: NSD 2227 of 2018
Judge: STEWART J
Date of judgment: 22 October 2019
Catchwords: MIGRATION – appeal from Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority – whether decision of the Authority affected by jurisdictional error – failure to exercise power under ss 473DC of the Migration Act 1958 (Cth) to obtain new information – whether failure unreasonable – appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 5J, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DF, 473FA, 473FB, 473GA, 473GB
Cases cited:

BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

DPI17 v Minister for Home Affairs [2019] FCAFC 43; 366 ALR 665

House v The King [1936] HCA 40; 55 CLR 499

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 40

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600

Date of hearing: 28 May 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 76
Solicitor for the Appellants: E Rajadurai of Divine Legal
Counsel for the First Respondent: R Graycar
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs

ORDERS

NSD 2227 of 2018
BETWEEN:

FPU17

First Appellant

FPV17

Second Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

STEWART J

DATE OF ORDER:

22 OCTOBER 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants are to pay the first respondent’s costs.

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


REASONS FOR JUDGMENT

STEWART J:

Introduction

  1. The appellants are a father and his teenage son.  They appeal against a decision of the Federal Circuit Court of Australia (FCC), FPU17 v Minister for Immigration [2018] FCCA 1804. That is a decision on an application by the appellants for the review and quashing of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister to refuse the appellants Safe Haven Enterprise Visas (SHEV). The second appellant does not raise any separate grounds of appeal and indeed, no…

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Details
Case
[2019] FCA 1727
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of FPU17 v Minister for Home Affairs was heard as an appeal against the dismissal of an application for judicial review of a decision by the Immigration Assessment Authority. The applicant, FPU17, challenged the decision made by the Immigration Assessment Authority regarding a fast track reviewable decision, asserting that the Authority had failed to exercise its power under section 473DC of the Migration Act 1958 (Cth) to obtain new information, which the applicant claimed was unreasonable and constituted a jurisdictional error.

The central legal issue before the court was whether the Immigration Assessment Authority's failure to seek new information as provided for in section 473DC of the Act constituted a jurisdictional error that would render the Authority's decision invalid. This required the court to interpret sections 473DB, 473DC, 473DD, and 473FA of the Act, particularly in the context of the Authority's role in conducting a review that is efficient and free of bias. The court had to determine whether the Authority's discretion to obtain new information was mandatory or discretionary and whether the failure to exercise this discretion was unreasonable.

The court held that sections 473DB and 473DC of the Act do not impose a duty on the Immigration Assessment Authority to obtain new information, but rather provide that the Authority may do so if it considers it relevant. The court further determined that the Authority's failure to seek new information did not amount to a jurisdictional error, as the provisions do not require the Authority to act according to substantial justice or the merits of the case. Given that the Authority was not bound by technicalities or rules of evidence, the court found that the Authority's decision was not affected by jurisdictional error. Consequently, the appeal was dismissed.

The court's final orders were that the appeal was dismissed and the appellants were to pay the Minister's costs. The costs order reflects the successful party's entitlement under the Federal Court Rules 2011, as no submission to the contrary was made by the appellants.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellants are to pay the first respondent’s costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Grounds 2-4 must accordingly fail.Conclusion In the circumstances, the appeal must be dismissed. As the successful party, the Minister should have his costs. The appellants did not submit to the contrary.

Ratio Decidendi

Legal Principle Established

Section 473DB deals with what the Authority must consider in the following terms:473DB Immigration Assessment Authority to review decisions on the papers(1) 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.(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority. Subdivision C of Division 3 of Part 7AA deals with additional information. Relevantly, it includes the following provisions:473DC Getting new information(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:(a) were not before the Minister when the Minister made the decision under section 65; and(b) the Authority considers may be relevant.(2) 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.(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:(a) in writing; or(b) at an interview, whether conducted in person, by telephone or in any other way.473DD Considering new information in exceptional circumstancesFor the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. Section 473DF set out some requirements with regard to the timing and manner of seeking new information whether in writing or by interview. Section 473FA(1) provides that the Authority, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of limited review that is “efficient, quick, free of bias and consistent with Division 3 (conduct of review)”. Section 473FA(2) provides that the Authority, in reviewing a decision, “is not bound by technicalities, legal forms or rules of evidence”. Unlike ss 353 and 420 of the Act which deal with the review of different decisions (i.e. not “fast track reviewable decisions”), s 473FA does not provide that in reviewing a decision the Authority is required “to act according to substantial justice and the merits of the case”.