FQL17 v Minister for Immigration
[2019] FCCA 2087
•31 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FQL17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2087 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Protection visa (subclass 866) – whether IMMI17/015 is invalid so far as it purports to the apply to the applicant – whether the Authority failed to consider whether the delegate’s decision is a valid decision – whether the Authority failed to consider whether it had jurisdiction to review the delegate’s decision – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5A, 473CA, 473CB, 473CC |
| Cases cited: SZGIZ v Minister for Immigration [2013] FMCA 215 |
| Applicant: | FQL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3973 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Michaela Byers, Pro Bono Basis |
| Solicitors for the Respondents: | Ms Morris, Clayton Utz |
ORDERS
Leave granted to rely upon the second amended application, dated 10 May 2019.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3973 of 2017
| FQL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The applicant is a citizen of the People’s Republic of China. The applicant arrived in Australia on 13 February 2007 on a Student visa but ceased studying as he claimed he could not pay his tuition fees.
In October 2007, the applicant’s father, FZ, came to Australia. FZ applied for a Protection visa as he claimed he was a Falun Gong practitioner, that his land had been taken, that he owed money and that his name had been removed from the household registration (Hukou). That application for a protection visa was refused. FZ then appealed to the then Refugee Review Tribunal (“RRT”) and later appealed to this Court which dismissed the appeal.
In June 2012, the applicant’s cousin took the applicant to a Taoist temple in Belmore and the applicant became a member of I-Kuan Tao. This version of Taoism is not recognised by the Chinese government.
In June 2012, the applicant applied for a Protection visa based on his membership of I-Kuan Tao. This application was refused by the Department and the decision of the Department, in turn, was affirmed by the RRT.
Following the judgment in SZGIZ v Minister for Immigration [2013] FMCA 215, FZ made a further Protection visa application, with the applicant in this matter as a secondary applicant to his father’s second protection visa claim. This application was refused by the Department and the decision was affirmed by the RRT.
On 12 September 2017, the applicant made a third Protection visa (Subclass 866) application. This was refused by a delegate of the Minister on 19 October 2017. The applicant then sought review by the Immigration Assessment Authority (“the Authority”). On 1 December 2017, the Authority affirmed the delegate’s decision to refuse the third claim by the applicant for a protection visa. The applicant now seeks judicial review of the Authority’s decision.
Grounds of Appeal
An initial application for judicial review was filed in this Court on 20 December 2017. That application consisted of one ground of appeal, alleging jurisdictional error in that the Authority acted unreasonably under s 473DD of the Migration Act 1958 (Cth) in relation to alleged new information.
On 14 September 2018, an amended application to this Court was filed. Three additional grounds of appeal were added. In essence, the three grounds of appeal in the amended application suggested that the applicant was not liable to be classified as a “fast track” applicant and as a result, the Authority had no jurisdiction to review his case under s 473CC of the Act. In a further amended application that was filed along with the applicant’s outline of submissions, the original Ground 1 was abandoned and the particulars of Ground 2 were amended. The grounds for appeal that are now pressed before the Court, for which leave was granted, are as follows:
Ground 2: IMMI17/015 is invalid in so far as it purports to apply to the Applicant.
Particulars
The IAA failed to consider whether the Applicant was a person specified by an anonymised particular reference in IMMI17/015 and that the Applicant was a “fast track applicant” when there was no basis to do so.
Ground 3: The IAA failed to consider whether the delegate’s decision was a valid decision.
Particulars
The IAA failed to consider that the delegate’s decision incorrectly applied the fast track procedure to the applicant when he was not a “fast track applicant”.
Ground 4: The IAA failed to consider whether it had jurisdiction to review the delegate’s decision.
Particulars
The IAA failed to determine whether the Applicant was a fast track applicant or not.
Evidence before the Court
In an affidavit of Che-Long Chang of 13 June 2009, the Court has been provided with a screenshot of the first respondent’s “integrated client services environment (ICSE) internal database system in respect to the applicant, which records among other things, the Person Identification Digit (“PID”) allocated to the applicant” on 10 November 2006. In addition, the Court has been provided with a copy of a letter dated 5 September 2017, from the first respondent to the authorised representative of the applicant, confirming the allocation of the personal identification digit to the Applicant.
During the course of the hearing, the Court was provided with a copy of Migration Instrument IMMI17/015: Person who is a fast track applicant. It is noted that the instrument is made under paragraph 5(1AA)(b) of the Act for paragraph (b) of the definition of fast track applicant in subsection 5(1) of the Act.
Paragraph 2 of that Instrument details the following:
The purpose of the instrument is to include in the definition of a fast track applicant those persons specified by reference to their Department Immigration and Border Protection Personal Identification Digit in Schedule 1 to this instrument.
Contained within Schedule 1 to IMMI107/015 is a table containing 85 person identification digits including that of the Applicant.
Section 5(1) of the Act 1958 defines a “fast track” applicant as follows:
(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).
It is common ground between the parties that the applicant does not fall under s 5(1)(a) of the Act but was purportedly the subject of a declaration in IMMI17/015 as a person who is, or is included in, a class of persons specified by a legislative instrument.
The substantive issues for consideration in this matter therefore are:
· Is IMMI117/015 valid or invalid insofar as it purports to apply to the applicant?
· Was the Authority required to consider whether or not the delegate’s decision applied to the applicant on the basis that he was not a fast track applicant; and
· Did the Authority’s decision miscarry on the basis that it did not consider whether or not it had jurisdiction to consider the delegate’s decision and should have considered whether or not the applicant was a fast track applicant or not?
The Applicant’s Submissions
In the submissions provided to the Court, by Ms Byers on behalf of the applicant, it was initially suggested that there was no evidence that the applicant had been given a PID (or any other PID in schedule 1 to IMMI17/015) at the time IMMI17/015 was made. It was conceded that the submission could not be sustained in light of the material contained within the affidavit of Che-Long Chang, referred to above, which clearly shows that the PID number was allocated to the applicant on 10 November 2006, well before the making of IMMI17/015.
It was next submitted that even if there was evidence that the applicant had been allocated a PID (or any other PID in schedule 1) prior to the making of IMMI17/015 there would still be no proper basis to find that the applicant was a person referred to in IMMI17/015.
It was submitted that the term “Personal Identifier” is a term defined in s 5A of the Act to include, for example, a person’s fingerprints, a photograph of a person’s face and shoulders and a person’s signature. The purpose of a “Personal Identifier” under s 5A (3) of the Act is to assist in the identification of and to authenticate the identity of persons for the purposes of the Act. It was further submitted that unlike “Personal Identifier” the term “Person Identification Digit” is not defined by the Act (or by IMMI17/015). It was submitted that the Act did not empower a person to give a PID to a particular person or to specify that a particular number is a PID and is referrable to a particular person.
It was submitted that a Court is simply informed by the Minister that a person has been given a PID by the Department and has no means to independently verify that claim within the statutory framework. It was submitted that there was no way for a Court to test whether a mistake has occurred in allocating the PID or whether a Departmental officer has exceeded his or her authority by giving the person a PID or that the Minister proceeded on the understanding that the particular PID corresponded to a particular natural person in the making of the regulation.
During submissions before the Court, Ms Byers submitted that a list of numbers does not specify a class of person. In order for there to be a class of persons there must be shared attributes which are specified by the legislative instrument, informing those persons so they can verify whether or not they in fact meet the legislative requirements for being a “fast track applicant”.
In relation to Grounds 3 and 4 it was submitted that the case of SZTVU v Minister for Home Affairs [2019] FCAFC 30 (“SZVTU [2019]”) per Perry, Derrington and Wheelahan JJ, could be distinguished from the circumstances in this particular case. In this case, the applicant was not a typical “fast track applicant” as he had arrived by air. The materials that he was provided with, which are outlined in the Court book, did not include the legislative instrument IMMI17/015.
It was submitted by the applicant, that the Authority had committed jurisdictional error in that it had simply proceeded upon the presumption that the applicant was indeed a “fast track” applicant and that there was nothing to indicate that the Authority had ever made any inquiry or even considered the possibility that the applicant may not be a “fast track” applicant.
It was submitted, that as the applicant had arrived by air and was not a typical unauthorised maritime arrival, the Authority was under an obligation to ensure that it had appropriate jurisdiction. It was submitted that there was a requirement within s 473CB of the Act to refer to the Authority all relevant material including that contained within section 473CB(1)(A)–(D) of the Act. It was submitted that a copy of the relevant determination that the applicant was indeed a “fast track applicant” was never provided to the Authority and it accordingly failed in its inherent task of identifying whether or not it had jurisdiction to conduct the review in relation to the applicant.
The First Respondent’s Submissions
In submissions to the Court, on behalf of the first respondent, it was noted that Grounds 2 - 4 of the amended application filed on 14 September 2018, appeared to be substantively identical to Grounds 1-3 by the applicant in SZTVU v Minister for Home Affairs [2018] FCCA 1962 (“SZTVU [2018]”). It was further noted that an appeal against the decision of the Federal Circuit Court was recently dismissed in the decision SZTVU v Minister for Home Affairs [2019] FCAFC 30.
It was submitted on behalf of the first respondent that the grounds of appeal appeared to be premised on a contention that the power in s 5(1AA) (b) of the Act to specify a person as a “fast track applicant” is limited to specifying persons “who are protection visa applicants” being persons who have an extant protection visa application at the time the legislative instrument is made.
It was submitted on behalf of the first respondent that that contention was considered and rejected by Derrington and Wheelahan JJ in SZVTU [2019]. In particular, it was submitted that Derrington and Wheelahan JJ noted in paragraph [63] that:
“There is no express limitation in the definition that would confine the instrument-making power in s 5(1AA) of the Act so that only persons, or classes of persons, who have made a valid application for a protection visa can be specified for the purposes of the definition.”
It was noted further by Derrington and Wheelahan JJ at paragraph [71] that the term “fast track applicant” is not a term of ordinary usage, “it is an instance of a term that is given a special meaning by the definition in s 5(1).” It was further submitted that the circumstances of the applicants in this case and SZTVU [2019] are relevantly identical and that the power under s 5(1AA) (b) of the Act was validly exercised by the Minister in IMMI17/O15 and the applicant was relevantly included in the instrument.
In relation to Grounds 2 to 4 (amended), Counsel for the first respondent noted that these grounds were substantively identical to the proposed Ground 7 relied upon by the applicant in SZTVU [2019]. The Court’s attention was drawn to the Full Court’s findings which held that the term “Personal Identifier” in s 5A had a different purpose to the “Personal Identification Digit”, such that the use of an identifier such as the PID in legislative instruments was consistent with other provisions in the Act and that there is “nothing in the legislation which ... precludes the use of identifying numbers” (SZTVU [2019] at paragraph 83).
The Minister noted that as compared to SZTVU [2019], in this case there was evidence before the Court of the allocation of a PID to the applicant well before the applicant’s PID was included in the relevant legislative instrument IMMI17/O15. Accordingly, the Minister submitted that IMMI17/015 did in fact apply to the applicant and he was validly specified as a “fast track” applicant pursuant to s 5(1) and 5(1AA)(b) of the Act. Having been refused a visa by the delegate, the Minister was under an obligation to refer that decision to the Authority pursuant to s 473CA of the Act and as a result the Authority was obliged to review that referred decision pursuant to s 473CC of the Act. It was submitted that in those circumstances, no jurisdictional error or legal error occurred on behalf of the Authority.
Consideration
The applicant’s submission that the list of PID contained in schedule 1 of IMMI17/O15 must include material which would enable the applicant to identify that he was relevantly within a class of persons that have shared attributes, cannot be sustained. Section 5(1) of the Act provides a complete answer to what a “fast track” applicant is defined as. It is either under s 5(1) (a)(i) – (iii):
(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).
The wording used above is used in both the singular and plural. That is it may either be a person or it may be a class of persons. There is no requirement that there be a common attribute between any and all of the persons who may be included in a legislative instrument. That is a matter for the Minister’s discretion.
Whilst it is common ground that the applicant was not an unauthorised maritime arrival to which s 5(1) (a) of the Act applied to, he was a person who, as indicated above, had made previous protection visa applications which had been rejected. The Minister, for whatever reason, by referring to the applicant by reference to his PID in schedule 1 of IMMI17/015, provided to him a further mechanism by which he could lodge a further visa application but on the premise that it would be subject to a “fast track” review process should it be refused.
I am satisfied that the reasoning of the Full Court in SZTVU [2019] is applicable in this case. Further, in this case, information has been provided to the Court which indicates that a PID was allocated to the applicant at a much earlier date. No evidence has been put to the Court that a mistake occurred in allocating the PID, or that a departmental officer exceeded his or her authority in giving the applicant a PID. The ground cannot be sustained.
In relation to the submission that the Authority failed to undertake an essential jurisdictional task in establishing whether or not the applicant was a “fast track applicant”, the submission must fail. Once it is established that the applicant has been validly specified as a “fast track” applicant and there is a refusal by the delegate, then the decision to refer the matter to the Authority is an obligation that is placed on the Minister. I am not satisfied that there is any requirement for the Authority to conduct a preliminary enquiry into whether the applicant is indeed a “fast track” applicant. That is presumed by the referral. If it was suggested that he was not relevantly a “fast track applicant”, that issue should have been relevantly pleaded before the Authority. In the present case however, with the submission having been advanced in this Court that the applicant was not a “fast track” applicant, evidence has now been provided which, as I have found above, indicates he was validly delegated as a “fast track” applicant. I cannot accept that there is a duty of the Authority to enquire into each and every matter, rather it simply has a duty to proceed to review matters that are referred to it by the Minister.
Conclusion
The application is accordingly dismissed.
It was agreed between the parties that costs should be awarded to the successful party in the amount of $7,467.00 that being the scale amount applicable in matters before the Court.
The Court acknowledges and appreciates the assistance given to the Court by both solicitors in the matter.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 31 July 2019
Correction (8 August 2019)
Order 1: Page 3, changed date from 10 May 2017 to 10 May 2019.
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