FRV17 v Minister for Immigration - [2018] FCCA 2327

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRV17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2327

Catchwords:
MIGRATION – Protection Visa – decision of Administrative Appeals Tribunal – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 65, 473CB, 473DA(1), 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 476(1)

Cases cited:

Applicant:

FRV17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 714 of 2017

Judgment of:

Judge Kendall

Hearing date:

7 June 2018

Date of Last Submission:

7 June 2018

Delivered at:

Perth

Delivered on:

7 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr N J Draper

Solicitors for the Applicant:

Granich Partners

Counsel for the Respondents:

Ms R Graycar

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 74 of 2017

FRV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

By application filed in this Court on 21 December 2017, the applicant seeks judicial review of a decision of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 2327
Decision Date: 7 June 2018

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Kendall considered the application of FRV17 against the Minister for Immigration. The dispute concerned the Immigration Assessment Authority's (IAA) review of a fast-track reviewable decision.

The central legal issue before the court was whether the IAA had properly considered the material before it, particularly in relation to updated country information, and whether this necessitated providing the applicant with an opportunity to comment on that information. The court was required to interpret provisions of the *Migration Act 1958* (Cth) concerning the review material that must be provided to the IAA and the circumstances under which the IAA may consider information not originally before the primary decision-maker.

Judge Kendall noted that section 473CB of the *Migration Act 1958* (Cth) mandates the Secretary to provide specific review material to the IAA. The IAA had regard to the applicant's submissions and, crucially, considered it appropriate to obtain updated country information relevant to Afghanistan, published after the delegate's decision. The Judge found that, given the volatile security situation in Afghanistan, there were "exceptional circumstances" justifying the consideration of this updated information under sections 473DC(1) and 473DD of the Act. The court observed that section 473DE of the Act did not, in these circumstances, require the applicant to be given an opportunity to comment on this updated country information.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In relation to this matter, the IAA had regard to the information referred to by the Secretary in accordance with s.473CB of the Act (CB 181 at [3]). That section reads as follows:Material to be provided to Immigration Assessment Authority(1) The Secretary must give to the Immigration Assessment Authority the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:(a) a statement that:(i) sets out the findings of fact made by the person who made the decision; and(ii) refers to the evidence on which those findings were based; and(iii) gives the reasons for the decision;(b) material provided by the referred applicant to the person making the decision before the decision was made;(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;(d) the following details:(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority. As correctly outlined by the Minister at paragraph 6 and 7 in written submissions, the IAA noted that it had had regard to the submission received from the applicant’s adviser on 15 February 2017 insofar as the submission reiterated claims and referred to case law, policy and country information that was before the delegate, and to the extent that the submission otherwise addressed the delegate’s reasoning and findings. The IAA also considered it appropriate to obtain updated country information published after the date of the delegate’s decision: [10]. The IAA found that, given the fluidity of the security situation in Afghanistan, it was necessary to give proper consideration to updated information and there were “exceptional circumstances” to justify considering that information (cf s.473DC(1) and s.473DD). That information was not provided to the applicant for comment. Nor, arguably, did it need to be as per s.473DE of the Act.