FQD17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 101
•15 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FQD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 101
File number: MLG 2796 of 2017 Judgment of: JUDGE FORBES Date of judgment: 15 February 2024 Catchwords: MIGRATION - application for judicial review of decision of Immigration Assessment Authority – whether new information arose for consideration – whether Authority’s reasons departed from delegates reasons - whether Authority failed to consider new information - whether unreasonable for Authority not to conduct a hearing – Part 7AA review process considered – no error found Legislation: Migration Act 1958 (Cth) ss 5A, 36, 425, 473CC, 473DA, 473DC, 473DD, 473DE Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of hearing: 21 December 2023 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 2796 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FQD17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
15 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application for judicial review filed on 21 December 2017 be dismissed.
2.The Applicant shall pay the First Respondent’s costs of the application which in default of agreement shall be in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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 FORBES
INTRODUCTION
In this matter the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the Authority) dated 27 November 2017. The Authority affirmed a decision of a delegate of the first respondent (the Minister) not to grant the applicant a Safe Haven Enterprise Visa (the visa).
For the reasons set out below, I have determined that the Authority’s decision was not affected by jurisdictional error.
BACKGROUND
The following background is derived from the materials in the Court Book and the summary contained in the written submissions filed by the Minister. Unless otherwise stated, the following matters are uncontroversial or not subject to challenge.
The applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia on 5 November 2012 as an unauthorised maritime arrival.
On 16 November 2016, the applicant applied for the visa with one-off assistance from a registered migration agent. The applicant’s claims were set out in a statutory declaration accompanying the application and can be summarised as follows[1]:
[1] Court Book (CB) 146-147, Part 4 of the delegate’s reasons
·He is from Jaffna, Northern Province in Sri Lanka.
·When he was young he lived in an area controlled by the Liberation Tigers of Tamil Eelam (LTTE), then due to violence they moved to a government controlled area. The army would come and round up everyone in the village for questioning. The young Tamil men were taken and beaten up by the army.
·This happened to him twice when he was around 16 years old. The first time he was questioned by the Sri Lankan Army (SLA) but he was not beaten up, however the second time he was. They hit him because they thought he was an LTTE sympathiser.
·His elder brother was also beaten up by the SLA. His immediate family were not members or supporters of the LTTE but his uncle was a member of the LTTE.
·His uncle lived with them while growing up until 1995. During the civil war his uncle joined the LTTE. At the end of the war, he was rehabilitated and in 2011 his uncle came back to live with the applicant’s family.
·When his uncle came to live with them, some unknown men started coming to the house and asking about his uncle. The unknown men asked the applicant three or four times. After this, his uncle went to the Army Camp with identity documents to show who he was.
·The men still came to the house wanting to know why his uncle was staying with them. They asked the applicant about himself and took his ID card from him and told him to pick it up from the Army Camp in the evening.
·When the applicant went to the Army Camp in the evening, he was told that they did not have his ID card. This frightened the applicant because he had heard of people getting killed when their ID card was taken from them.
·The applicant feared for his life because without his ID he could not do anything, he left his business and house and stayed with friends. He left Sri Lanka in 2012 on a tourist visa to India, and stayed for five months in Mandapan Camp. He could not continue living there as India was not accepting any more refugees.
·After coming to Australia, he lived with another brother who arrived around 2008 and was found to be a refugee.
·He cannot return to Sri Lanka because he is afraid that he will be killed by the men who had been asking about him. He is also afraid because in 2014 his friend was chopped up and killed.
·His older brother has told him that men are still making enquiries about him. The SLA will not protect him because it is the Army that is behind all of this.
On 6 March 2017 the applicant was invited to an interview in relation to his visa application, which he attended on 27 March 2017.
On 8 June 2017 a delegate of the Minister refused to grant the applicant a visa. Whilst the delegate accepted elements of the applicant’s claims, such as that his uncle had joined the LTTE, the delegate did not accept that the applicant’s life was in danger when he fled Sri Lanka[2]. The visa was refused on the basis that there was only a remote chance the applicant would be imputed with an LTTE association for reason of his Tamil ethnicity[3], and he would not face persecution based on his profile as a failed asylum seeker returning to Sri Lanka[4]. The delegate was not satisfied that the applicant was a refugee under section 5H(1) of the Migration Act 1958 (Cth) (the Act), nor did he meet the criteria in s 36(2)(a).
[2] CB 147-148
[3] CB 149
[4] CB 151
The delegate was also not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under the complementary protection provisions in section 36(2)(aa) of the Act.
The application was automatically referred to the Authority for fast-track review under Part 7AA of the Act. Under ss 473CA and 473CC, the Minister must “refer, as soon as is reasonably practicable after a decision is made, and the Authority must review, a fast track reviewable decision”[5].
[5] CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 (CUZ17) at [22]
Authority decision and reasons
On 11 July 2017, the applicant made submissions to the Authority, assisted by a registered migration agent. The migration agent did not formally represent the applicant but had agreed to facilitate correspondence on his behalf.
The submissions[6] outlined various legal and factual errors that the applicant believed had been made by the delegate. The applicant also submitted that the alleged legal errors could not be resolved without the Authority requesting further information from him, either in writing or at interview. The applicant requested an opportunity to present his claims in person as part of an oral hearing[7].
[6] CB 170-175
[7] CB 174
On 27 November 2017, without inviting the applicant for a hearing, the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
In its reasons, the Authority referred to the 11 July 2017 submissions, noting that they restated the claims already made before the delegate, along with presenting some new information[8].
[8] CB 180
The new information provided in the submissions included that[9]:
(1)failed asylum seekers who are ethnic Tamils were detained and tortured upon return to Sri Lanka;
(2)the applicant cannot talk about his friend’s death because he believes it will put him in danger;
(3)from around 1999 or 2000 the applicant did not have much contact with his brother as their family was in an army controlled area;
(4)the applicant’s brother worked in a small shop annexed to the applicant’s house and the applicant was not working; and
(5)the applicant was unable to apply for a duplicate identity card after it was taken, as it had been taken by the authorities and if he had applied for a new one it would have attracted negative attention.
[9] CB 180-182, [3]-[13] of the Authority’s reasons
The Authority found that the new items of information could have been provided to the Minister before the delegate made their decision and it was not credible personal information which was not previously known. The Authority was not satisfied that exceptional circumstances existed to justify considering any of the above information pursuant to section 473DD(a) of the Act.
Regarding the applicant’s submission that the Authority should request more information from him or invite him for an oral hearing, the Authority had regard to the purpose and effect of Part 7AA of the Act, and decided not to request any further information from the applicant.
The Authority went on to consider the applicant’s claims. Given the relatively narrow scope of the judicial review grounds, it is not necessary to rehearse the Authority’s findings in relation to all of the applicant’s claims for protection.
Suffice to say, at [18]-[43] the Authority extensively considered the information before it and concluded that the applicant would not face a real chance of harm on the basis of being “Tamil, young and male from the Northern Province or for having been mistreated by the authorities in the past or because of his connection to his uncle”[10]. The Authority also found that the applicant would also not face a real chance of harm “because his friend was killed in 2014” or because “his ID was taken”[11].
[10] IAA’s reasons at [44]
[11] IAA’s reasons at [44]
The Authority also considered the relevant information at [46]-[48] and concluded at [49] that the applicant would not face a real chance of harm on account of being a failed asylum seeker returning to Sri Lanka.
The Tribunal found the applicant did not meet the refugee criterion in s 36(2)(a) or the complementary protection criteria in s 36(2)(aa).
Judicial review
On 21 December 2017 the applicant made an application for judicial review in this Court. The grounds of review are expressed as follows:
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 in a practical injustice to the Applicant.
2.The Second Respondent constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(l) 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.
3.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.
On 19 September 2018 Registrar Allaway ordered that the Minister file and serve a court book, which was submitted accordingly. Registrar Allaway also ordered the applicant to file and serve, 28 days before the hearing, any amended application with proper particulars of the grounds of the application, any supplementary court book, and written submissions. The applicant did not comply with this order.
The Minister filed a written outline of submissions on 7 December 2023.
HEARING
The parties appeared before me on 21 December 2023. The applicant was self-represented and appeared with the assistance of a Tamil interpreter. The Minister was represented by Mr Gardner.
The hearing was scheduled to commence at 10.15am. However, due to delays with the Tamil interpreter, the proceedings did not commence until 11.25am.
At the commencement of the hearing I confirmed that the applicant and the Tamil interpreter understood each other. I explained the course the hearing would follow, including the order of oral submissions and the applicant’s right of reply. I informed the applicant that the Court could not reconsider the merits of his application or the Tribunal’s decision or grant the applicant the visa that he seeks. I explained that the role of the Court was restricted to determining whether the Tribunal had made an error in arriving in its decision, by exceeding or misunderstanding its statutory authority. I was satisfied that the applicant understood the explanation and I invited him to ask questions or seek further clarification if there was anything about the process he did not understand.
The applicant confirmed that he had received a copy of the Court Book and the Minister’s written submissions.
Applicant’s submissions
I invited the applicant to speak to the grounds of review. His oral submissions did not engage with the grounds.
The applicant submitted that in its reasons the Authority had taken a broad general view of the conditions in Sri Lanka instead of the applicant’s personal circumstances. I asked the applicant to explain exactly what circumstances the Authority had failed to consider. The applicant pointed to the Authority’s finding that because the applicant’s family lives in Sri Lanka without risk of harm, the applicant would also be able to return and live without risk of harm. However, the applicant submitted that his own personal circumstances differed to that of his family’s, and that he had his own reasons to flee Sri Lanka. The applicant also submitted that the Authority had failed to consider that he was at greater risk of harm because he had assisted his uncle and had his identity card taken away by “anonymous people”. I confirmed with the applicant that his main issue was that the Authority had failed to take his personal circumstances into account.
After the applicant completed his oral submissions, the Minister brought to my attention to written submissions which had been filed on the applicant’s behalf. The written submissions were lodged on 19 December 2023 at 12.26pm but were only accepted for filing on the day of hearing, 21 December 2023 at 10.18am, after the scheduled hearing commencement time. There was a short adjournment to allow the applicant to read through these submissions with the assistance of the Tamil interpreter. I informed the applicant that he should inform me, after the adjournment, whether he would be relying on the written submissions and whether he wanted to say anything else to supplement his oral submissions.
After the adjournment, the applicant informed the Court that he wanted to rely on the written submissions. The Minister indicated that there were no objections.
The precise origin of the applicant’s written submissions was not made clear. As with the oral submissions, the written submissions did not engage with the grounds of review, and largely re-asserted the applicant’s claims. However, the written submissions did assert that, at the delegate interview, the applicant could not understand some questions asked or properly explain his situation due to limited English levels. I asked the applicant whether there was an interpreter present at the delegate interview, and he confirmed there was. I note that, in the Department of Immigration and Border Protection’s letter inviting the applicant to an interview with the delegate, it is stated that “[a] Tamil speaking interpreter will be present at the interview”[12].
[12] CB 105
The applicant did not seek to add anything to his oral submissions.
Minister’s submissions
The representative for the Minister relied upon their written submissions. Before doing so, the Minister addressed the oral grounds raised by the applicant during the hearing.
Oral grounds
Turning to the applicant’s assertion that the Authority had failed to take into account his personal circumstances, the Minister submitted that on a proper reading of the Authority’s reasons, this ground cannot be not made out. The Minister referred to the Authority’s detailed assessment of the applicant’s personal circumstances, including his connections to his uncle, which is discussed from around [18] to [43] of the Authority’s reasons. I agree with the Minister that the Authority undertook an extensive analysis of the applicant’s personal circumstances.
Regarding the second oral submission, the Minister submitted that it was logical for the Authority took the applicant’s family’s circumstances into account as a relevant consideration to do so.
References to the applicant’s family circumstances are found at [40] and [41] of the Authority’s reasons:
“[40]I have had regard to the applicant’s evidence that his older brother and wife and children live in Sri Lanka. The evidence is that [the applicant’s uncle] also lived with them after he was released from rehabilitation. I am not satisfied that they have been harmed or are at risk of harm because of their connection to [the uncle].
[41]The applicant claimed that even though he has left Sri Lanka, men are still making enquiries at his home about the applicant and his whereabouts. […] There is no evidence that these men have shown any interest in the applicant’s older brother who, together with his wife and children, also lived with [the uncle], after [the uncle] was released from rehabilitation […]”
I agree with the Minister that it was relevant and reasonable for the Authority to make these references to the applicant’s family in Sri Lanka. It was open for the Authority, as part of the assessment of risk faced by the applicant, to consider the fact that the applicant’s family members continued to live in Sri Lanka. I agree with the Minister that the applicant’s submission simply invites impermissible merits review.
Counsel for the Minister then turned to the point raised by the applicant in his written submissions, that the applicant should have been invited to participate in an oral hearing before the Authority. The Minister conceded that, if the applicant had not been given a chance to express certain claims in the delegate interview due to communication issues, that might be relevant to the Authority’s discretion to invite the applicant for an interview. However, the applicant’s submissions to the Authority had never alleged the applicant was somehow prevented from giving evidence at the delegate interview (and as I confirmed with the applicant, there was a Tamil interpreter present at the delegate interview).
Rather, in his submission to the Authority, the applicant requested an interview with the Authority on the basis of alleged incurable legal and factual errors made by the delegate. The Authority specifically considered the applicant’s submission and his request for a hearing at [13] of its reasons. There the Authority found it did not consider it necessary to request any further information from the applicant, either in writing or at a hearing:
“[13]The applicant has submitted that the IAA is unable to cure the legal errors made by the delegate without seeking further information in writing or at an interview. The applicant requested an oral hearing. Section 473DB of the Act provides that subject to Part 7AA, the IAA must review a fast track reviewable decision by considering the review material provided to the IAA under s.473CB without interviewing the applicant. Section 473DC provides that the IAA does not have a duty to get, request or accept any new information, whether the IAA is requested to do so by an applicant or by any other person, or in any other circumstances. The IAA may only consider new information in limited circumstances. Furthermore, there is no entitlement to a hearing. Unlike Parts 5 and 7 of the Act, Division 3 of Part 7AA, together with a number of provisions dealing with the disclosure of information, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule and does not provide the applicant with an opportunity or right to present his claims on review. I have taken into account that the applicant made the claims to the Department and the delegate and gave evidence. I have decided not to request new information from the applicant.”
The Authority’s finding largely goes to the second ground of review in the applicant’s originating application and will be addressed below.
Having addressed the matters raised by the applicant in his oral and written submissions, the Minister turned to each of the three grounds articulated in the application for judicial review.
Ground one
By this ground the applicant alleges a denial of procedural fairness by reason of the Authority’s failure to alert the applicant to new issues, or because the Authority’s reasoning departed from the delegate’s reasoning, resulting in practical injustice.
In their written submissions, the Minister contends that this ground is liable to be dismissed for its lack of particulars[13]. Nonetheless, the Minister says that the applicant has been unable to point to any new issues which arose before the Authority or any substantial differences in reasoning between the decision of the delegate and the Authority. The Minister submits that in any event there was no obligation on the Authority to inform the applicant if it took a different view than the delegate[14].
[13] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J
[14] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72] per Reeves, Robertson and Rangiah JJ
Ground two
By ground two, the applicant contends that the Authority failed to conduct a review required by s 473CC(1) of the Act by failing to inform the applicant of issues arising on review or failing to consider its discretion under s 473DC to request new information from the applicant.
The Minister submits that the Authority did not rely on any new information in coming to its decision, and therefore the obligation under s 473DE of the Act to put new information to the applicant was not enlivened. The Minister also distinguishes between s 425 of the Act, which relates to the review process of the Administrative Appeals Tribunal (the AAT) and imposes a duty on the AAT to invite the applicant to a hearing in certain circumstances, and the Part 7AA fast track review process which applies to the present case. The Minister reiterates that an exhaustive list of the Authority’s procedural fairness obligations is found in s 473DA of the Act, and common law notions of natural justice do not apply[15].
[15] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [75], [78] per Reeves, Robertson and Rangiah JJ
While the applicant alleges that the Authority failed to request new information under s 473DC, the Minister submits that the Authority expressly considered its discretion to request new information at [13] of its reasons and decided not to do so.
Ground three
The third ground raised by the applicant, as pointed out by the Minister, is not a proper ground of judicial review, and fails to identify any jurisdictional error. This ground merely expresses that the applicant had applied for assistance through Victoria Legal Aid. This ground is dismissed.
STATUTORY FRAMEWORK
The decision of the Authority was made according to the fast track review process in Part 7AA of the Act. As observed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17]:
“[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority [...] is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.”
The practical role of the Authority under Part 7AA was helpfully explained by Judge Kelly in CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 at [24] - [25] where his Honour stated:
“[24]In contrast with a review under Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA is a mechanism of limited merits review. Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority; requires that the Authority should ordinarily conduct its review on the papers; provides for the exceptional, and strictly circumscribed, circumstances in which new information or documents may be sought or employed; and authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.
[25]In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant. The Authority may, but is under no duty to, get any documents or information that was not before the delegate. Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.” (emphasis added, citations omitted)
Part 7AA emphasises that there is no duty to conduct a hearing or request new information from the applicant[16]. Relevantly, section 473DC provides as follows:
[16] See ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
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.
Further, section 473DD provides as follows:
Considering new information in exceptional circumstances
For 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.
While it is not expressly mentioned in the applicant’s grounds, ground two at its highest asserts legal unreasonableness on behalf of the Authority for failing to exercise its discretion to get new information from the applicant. What is considered unreasonable must be assessed according to the statutory scheme. As the Minister submits, demonstrating legal unreasonableness in the context of Part 7AA carries a “demanding standard”[17]. As was said by the Federal Court in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]:
“Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.”
CONSIDERATION
[17] DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [110] per Beach, O’Callaghan and Anastassiou JJ
Ground one
In ground one the applicant alleges that he was denied procedural fairness because of the Authority’s failure to alert applicant to new issues. The applicant was unable to point to any new issues that arose before the Authority. The only new pieces of information before the Authority were those provided in submissions by the applicant, each of which was dealt with in the reasons.
The applicant also submitted that he was denied procedural fairness because the Authority departed from the delegate’s reasoning. I agree with the Minister that no substantial departure is found in the Authority’s reasons. Even if the Authority did make findings different to that of the delegate, I would point to the decision in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 in which Barker J at [59] stated that “no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme”[18].
[18] As cited in CUZ17 at [28]
I find that ground one is not made out.
Ground two
The applicant in ground two alleges that the Authority failed to conduct a review required by s 473CC(1) of the Act by failing to inform the applicant of issues arising on review or consider its discretion under s 473DC to request new information from the applicant.
The Authority did receive further information from the applicant via submissions facilitated by a registered migration agent, along with a request for a hearing. The Authority was plainly alive to those submissions. As to the information that was contained within the submissions, the Authority was required to determine if this was new information. The Authority did so at [3]-[13] of its reasons where it assessed whether to receive the information or not.
The premise of the request for a hearing, as put by the applicant in submissions, was for the Authority to “cure” the alleged legal and factual errors in the delegate’s decision. The applicant did not request a hearing on the basis that (nor did he mention at any point until the matter was heard before me) he was not fully “heard” by the delegate or was restricted by his limited English skills. As I confirmed with the applicant, a Tamil interpreter was present at the delegate interview.
Even though there is no obligation to conduct a hearing, the Authority is still required to act reasonably[19]. I agree with the Minister that, had the applicant (in his submissions to the Authority) alleged that he did not have an interpreter or could not communicate fully at the delegate interview, it might have been unreasonable for the Authority not to invite the applicant to an interview. However, that is not the case here. Having regard to the “demanding standard” that must be met to show legal unreasonableness on the part of the Authority, I am of the view that it was reasonable for the Authority not to conduct a hearing with the applicant.
[19] ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [3]-[4]
The applicant is not able to establish jurisdictional error in the Authority’s decision. I find that ground two is not made out.
DISPOSITION
Having considered the written and oral submissions of the parties, and for the reasons set out above, I have concluded that the decision of the Authority made on 27 November 2017 is not affected by jurisdictional error.
Accordingly, the application will be dismissed.
It is appropriate that the applicant pay the Minister’s costs which in default of agreement shall be in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 15 February 2024
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