FRL17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 495
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FRL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 495
File number: MLG 2814 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 5 June 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise Visa – where Authority found Applicant not to meet refugee criteria or complementary protection criteria – adjournment request made at hearing – adjournment not granted – applicant claimed factual and legal errors present in Authority’s decision – factual or legal errors not identified – whether the Authority failed to afford the applicant procedural fairness – consideration of Part 7AA of the Migration Act 1958 (Cth) – no information gap between the delegate and Authority – no basis for a claim of unreasonableness – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 473CC, 473DC, Part 7AA Cases cited: ALR17 v Minister for Home Affairs [2019] FCAFC 182 Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submissions: 14 March 2024 Date of hearing: 14 March 2024 Place: Melbourne The Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr A Gardner of Mills Oakley Lawyers ORDERS
MLG 2814 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 13 December 2017. By its decision, the Authority affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Safe Haven Enterprise Visa (subclass 790) (‘SHEV’).
BACKGROUND
The applicant is a Sri Lankan citizen who arrived in Australia in September 2012.[1]
[1] Court book at pages 65 and 72.
Application for a SHEV on 24 May 2016
The applicant applied for a SHEV on 27 May 2016.[2]
[2] Court book at page 52.
The applicant’s application for a SHEV annexed two Statutory Declarations of the applicant, in which he set out his protection claims, including his father’s involvement with the LTTE, his detention by the Sri Lankan Army and his circumstances of leaving Sri Lanka.[3]
[3] Court book at pages 115 to 118.
The applicant was invited to attend an interview with an officer of the Department of Immigration and Border Protection (‘the Department’) on 23 February 2017.[4] The applicant did not attend, nor did he respond to the Department’s requests for an explanation as to his failure to attend the interview.[5] By letter dated 11 April 2017, the applicant was invited to attend a further interview with the Department scheduled for 1 May 2017.[6] The applicant attended this interview.
[4] Court book at page 137.
[5] Court book at page 150 – 155.
[6] Court book at page 157 and CB 183.
On 9 May 2017, a delegate of the Minister refused the applicant’s application for a SHEV.[7]
[7] Court book at pages 178 – 190.
Referral to the Authority on 12 May 2017
On 12 May 2017, the delegate’s refusal decision was referred to the Authority in accordance with Part 7AA of the Migration Act 1958 (Cth) (‘the Act’).[8]
[8] Court book at page 233.
On 22 May 2017, the applicant appointed a representative and requested access to documents under the Freedom of Information Act 1982 (Cth).[9] On 7 June 2017, the applicant’s representative provided written submissions to the Authority.[10]
[9] Court book at pages 241 and 242.
[10] Court book at page 258 – 262.
On 13 December 2017, the Authority affirmed the delegate’s decision and refused to grant the applicant a SHEV.[11]
[11] Court book at page 265.
AUTHORITY’S REASONS
The Authority’s decision of 13 December 2017 is set out at pages 266 to 280 of the court book.
At paragraphs [3] to [5], the Authority identified the information before it, including the applicant’s 7 June 2017 written submissions. The Authority found that most of the applicant’s submissions consisted of legal argument as to why the delegate’s decision was wrong and reiterated the applicant’s claims made to the delegate.
The Authority noted at paragraph [5] that the applicant sought to rely upon two articles in support of the proposition that there was intense scrutiny and vigilance over Tamils in the north and northeast of Sri Lanka by the Sri Lankan authorities and armed forces until 2012. The Authority noted that one of the articles referred to was before the delegate, but the Washington Post article was not. As such this was new information and the Authority had to consider whether it should have regard to that new information under section 473DD of the Act.
The Authority determined that the Washington Post article pre-dated the delegate’s decision. It noted that no explanation was given as to why it had not been put before the delegate, or why it could be considered credible personal information. Moreover, the Authority noted that the delegate had had regard to other country information, some of which contained information similar to that contained within the Washington Post article. The Authority was therefore not satisfied that the requirements of section 473DD(b)(i) or (ii) were met nor that there were exceptional circumstances to justify giving consideration to the Washington Post article.[12]
[12] Authority decision record dated 13 December 2017 at paragraph [5].
At paragraph [6], the Authority summarised the applicant’s claims for protection.
After consideration of the applicant’s claims with respect to the refugee definition in section 5H(1) of the Act at paragraphs [10] to [48], the Authority ultimately concluded that the applicant did not meet the criteria in section 36(2)(a) of the Act.[13] Similarly, the Authority determined that the applicant did not meet the complementary protection criteria in section 36(2)(aa) of the Act.[14]
[13] Authority decision record dated 13 December 2017 at paragraph [49].
[14] Authority decision record dated 13 December 2017 at paragraphs [52] to [55].
PROCEEDINGS IN THIS COURT
On 21 December 2017, the applicant filed his application for judicial review of the Authority’s decision, together with an affidavit in support affirmed on the same date.
In his application, the applicant set out the following in the ‘Grounds of Application’ section:
That the decision of second [respondent] was affected by legal error.
The second respondent constructively failed to review the decision of the delegate and failed to conduct a review under section 473CC(1) 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 the applicant
More details will be provided by my legal representative. I am in the process of applying through Victoria Legal Aid.
(Spelling errors amended)
Hearing on 14 March 2024
The matter came before me for hearing on 14 March 2024. The applicant represented himself before me at the hearing, with the assistance of a Tamil interpreter.
At the commencement of the hearing, I explained in lay terms the role of the court in an application for judicial review, and in particular, that it was not the role of the court to determine whether the applicant should be granted a visa, but rather, to consider whether the Authority made a jurisdictional error in making its decision.
Applicant’s oral submissions
I identified the issues raised in the applicant’s application for judicial review, including purported legal error and a constructive failure of the Authority to review under section 473DC of the Act, and invited the applicant to make any submissions that he wished in respect of these issues.
I accept that this would not have been an easy task for the applicant who was not legally represented. The applicant stated that the Authority had made numerous errors in its decision with respect to dates and places. He provided one example of a reference to 2008 when the correct date was 2009 but could not point to the paragraph in the Authority’s decision that contained this error.
Upon a direct question from me as to whether the applicant had read the Authority’s decision, the applicant stated that as he had been unable to obtain a lawyer, he had been unable to ‘go through it’.
Applicant’s adjournment request
At the hearing, in the course of his oral submissions, the applicant requested an adjournment to obtain legal representation.
The Minister’s representative opposed the adjournment request on the basis that the application had been on foot since December 2017, providing the applicant with ample time to find legal representation. It was also noted that there was no evidence before the court that the applicant had taken any steps to obtain legal representation.
I did not accede to the applicant’s request for an adjournment. Not only has this matter been on foot since December 2017, but the applicant had not provided any evidence of the steps taken to secure legal representation in respect of this application. I therefore denied the request for an adjournment. Ultimately, I did not consider it to be in the interests of the administration of justice to further delay the resolution of this matter.
GROUNDS OF REVIEW
I will turn now to consider the grounds of review in the applicant’s application.
Notwithstanding orders made on 19 September 2018, permitting the applicant to file an amended application and written submissions 28 days prior to the hearing of this matter, and without being in any way critical of the applicant, no such amended application or written submissions were filed.
As stated, in oral submissions the applicant claimed that there were numerous errors in the Authority’s decision including by reference to dates and places where things allegedly occurred. For example, the applicant said that when he mentioned that he had been displaced to a particular location in Sri Lanka, the Authority referred to the wrong date and the wrong place. The applicant further stated that if he mentioned that he had stayed in a Tamil area, the Authority said he had stayed in a Sinhalese area. The applicant also said that the Authority made mistakes with the years and the dates for example instead of referring to 2008, they referred to 2009.
When asked to specifically identify within the Authority’s reasons, the errors to which the applicant was referring, he was unable to do so.
In response to these oral submissions, the Minister says that it is difficult to respond without specific details of the errors complained of. There is some force to this submission. Moreover, I note that in the applicant’s submissions to the Authority at pages 258 to 261 of the court book, the applicant’s representative was critical of the delegate’s decision on the basis that the delegate is said to have used a ‘template decision’ and therefore included matters that were not relevant to the applicant himself. The applicant’s representative refers to aspects of the delegate’s decision, which he says do not relate to the applicant.
Ultimately, it is not necessary for me to determine whether there were factual inaccuracies in the delegate’s decision as the Authority was required to consider the applicant’s claims afresh.
In the absence of any specific reference to factual inaccuracies in the Authority’s reasons, I am not satisfied that this claim discloses a jurisdictional error. Moreover, the Authority expressly referred to the applicant’s representative’s submissions and indicated that to the extent that they constituted legal arguments, it had regard to those submissions.
The applicant then claims that the Authority’s decision is affected by legal error. No particulars are specifically given as to the error alleged and therefore a blanket assertion such as this does not ground a finding of jurisdictional error.
The applicant goes on to assert that the Authority constructively failed to review the delegate’s decision and failed to conduct a review under section 473CC(1) by failing to inform the applicant of issues arising on review and failing to consider its discretion under section 473DC of the Act to get new information from the applicant.
In essence this is a claim that the Authority failed to afford the applicant procedural fairness in the manner in which it conducted the review, in particular by failing to put its reasoning to the applicant and allow the applicant to address any concerns the Authority had and/or to fail to seek new information from the applicant or to invite the applicant to an interview.
The Minister submitted that the Authority was under no obligation to raise issues or invite the applicant to respond to any adverse information, but rather, that its procedural fairness obligations are limited by the Act in Part 7AA.[15]
[15] Minister’s Outline of Submissions filed on 26 February 2024 at paragraphs [22] and [24].
I agree with this submission. Section 473DA(1) of the Act relevantly provides:
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.
Relevantly, section 473DB then further provides that subject to Part 7AA, the Authority is required to review a fast track reviewable decision referred to it on the papers, that is, by considering the material provided to it, without accepting or requesting new information and without interviewing the applicant.
There are limited circumstances in which the Authority may request new information or may deem it appropriate to interview the applicant. Relevantly, section 473DC provides:
(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.
These provisions do not impose an obligation on the Authority to invite the applicant to an interview, nor do they require the Authority to put to the Applicant matters adverse to him. In relation to the latter issues, I note that the applicant has not identified the matters adverse to him which he says should have been put to him.
In any event, as stated in ALR17 v Minister for Home Affairs [2019] FCAFC 182, at [26]:
… in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 … helpful guidance is provided by the High Court’s observations concerning the limited review regime under Pt 7AA. Those observations include that:
(a)a Pt 7AA review is of a limited kind, as is reflected in ss 473BA and 473FA(1)…;
(b)consistently with 473DB(1), Div 3 of Pt 7AA ‘is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by [the Authority]’…;
(c)the IAA is obliged to conduct a review by considering the ‘review material’ provided to it under s 473CB(1) without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1))…;
(d)the IAA is not obliged to give to a referred applicant material that was before the Minister or a delegate when a decision was made under s 65(1) (s 473DA(2))…;
(e)restrictions are imposed by s 473DD on when the IAA can consider new information…;
(f)there is a general exhortation in s 473FA that the IAA is pursue (sic) the objective of providing a mechanism of ‘limited review’ that is ‘efficient, quick, free of bias and consistent with Division 3 (conduct of review)’…;
(g)in contrast with the review in the General Division of the AAT, the IAA’s dispositive powers are not as broad, because it cannot set aside the referred decision and substitute its own decision, nor is it authorised to exercise all of the powers and discretions conferred upon the Minister …;
(h)there are ‘limitations on the form of review for which Pt 7AA provides’ …; and
(i)Pt 7AA is framed on the assumption of the Minister having complied with the requires of the code of procedure in Subdiv AB of Div 3 of Pt 2 …
This is not a case in which the Authority’s decision turned on an issue not before the delegate which would have been dispositive. Nor is it a case in which there was an information gap between the material available before the delegate and the material available before the Authority.
The applicant has not identified what the ‘serious issues on review’ are that he says resulted in the Authority failing to conduct a review as required by section 473CC(1) of the Act. It is apparent from a fair reading of the Authority’s reasons, that it considered the applicant’s claims, that it had regard to the submissions made on the applicant’s behalf, and that it’s conclusions were reasonably open on the evidence before it.
Similarly, whilst the Authority has the discretion to invite an applicant to an interview and or to obtain new information, and that discretion must be exercised reasonably, the exercise of the discretion must be exercised by reference to the nature of the review regime established under Part 7AA.
To the extent that the applicant’s grounds of review can be understood to claim that the Authority acted unreasonably in not inviting him to provide further information or to attend an interview, that ground must also fail.
The applicant does not say why the Authority should have invited him to an interview or why it ought to have sought new information. In any event having regard to the Authority’s reasons, and the framework established by Part 7AA, no unreasonableness is established. This is not a case where the Authority rejected the applicant’s claims on credibility grounds per se. Rather, the Authority did not accept some of the applicant’s claims and found that he had embellished some of his claims, by reference to a combination of inconsistencies between claims initially made and claims later provided as well as by reference to country information. That reasoning was reasonably open to the Authority.
For each of these reasons, no jurisdictional error is established.
Ground 3
As submitted by the Minister, ground 3 of the applicant’s application is no more than a statement indicating that the applicant had applied for legal aid.
No jurisdictional error arises from Ground 3.
CONCLUSION
For each of these reasons, I make the orders as set out at the commencement of these written reasons for judgment.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 5 June 2024
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