FUS17 v Minister for Immigration

[2019] FCCA 1179

FEDERAL CIRCUIT COURT OF AUSTRALIA

FUS17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1179

Catchwords:
MIGRATION – Application for protection visa – review of decision of Immigration Assessment Authority – whether the Authority’s decision was “made” within the meaning of s.473CA and s.473CB of the Migration Act 1958 (Cth) – whether the Authority had no jurisdiction to review the delegate’s decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 46A, 47, 65, 66, 67, 473CA, 473CB, sub‑divs.AA, AC of div.3 of pt.2, pt.7AA.

Cases cited:

DQX16 v Minister For Immigration & Anor [2018] FCCA 1915

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16

Applicant: FUS17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 4063 of 2017

Judgment of: Judge Baird

Hearing date: 22 May 2018

Date of Last Submission: 22 May 2018

Delivered at: Sydney

Delivered on: 8 May 2019

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Ms Dutton, Labour Pains Legal

Counsel for the Respondent: Mr H Bevan

Solicitors for the Respondent: Ms Warner-Knight, Australian Government Solicitor

ORDERS

THE COURT:

1. REFUSES leave to the Applicant to rely on the proposed further amended application dated 23 May 2018. 

2. ORDERS that the application be dismissed.

3. ORDERS that the Applicant pay the First Respondent’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 4063 of 2017

FUS17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority dated 5 December 2017.  The Authority affirmed a decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection, dated 21 April 2017 not to grant the Applicant a Safe Haven Enterprise Visa.

2. The Applicant relies on 2 grounds.  As will be apparent from [18] below, both of the grounds are concerned with whether the operation of pt.7AA of the Act is conditional upon the making of a decision by a delegate of the Minister, and, specifically, when that decision is made. 

3. After this matter was heard by me, his Honour Judge Smith delivered judgment in DQX16 v Minister for Home Affairs [2018] FCCA 1915 (7 August 2018), which concerned the same 2 grounds, on broadly similar facts (excepting the specifics of the applicant, their circumstances, and their protection claims). I agree with his Honour’s conclusion and his reasoning. As a matter of comity, I propose to follow it. Accordingly, I set out in these reasons the factual background, the Applicant’s claims, and an overview of counsel’s arguments for completeness.

Background

1. The Applicant, born in 1991, is a Hindu Tamil and is a citizen of Sri Lanka.  The Applicant arrived in Australia by boat on 23 October 2012 as an unauthorised maritime arrival.

2. By letters dated 13 January 2016 and 30 May 2016, the Department of Immigration and Border Protection notified the Applicant that the Minister had exercised his power under s.46A(1) of the Act and invited the Applicant to apply for a protection visa, relevantly a Safe Haven Enterprise visa (SHEV).

3. On 5 October 2016, the Applicant lodged his SHEV application for the Visa.

4. On 21 April 2017, the Delegate refused to grant the Applicant the Visa.  The Delegate prepared written reasons, and stated the date on the reasons, but did not state the time.  The reasons were contained in a document entitled “Protection Visa Decision Record”. The Record with the date stated on its face was sent to the Applicant in accordance with s.66 of the Act. There was no obligation under s.66 for the time to be included in the Record, or anywhere else. The requirement for a recording of the time is set out in s.67 which I set out later in these reasons. On 27 April 2017, the Authority wrote to the Applicant confirming that the Delegate’s decision had been referred to the Authority for review that day.

5. On 5 December 2017, the Authority affirmed the Delegate’s decision not to grant the Applicant the Visa.  On 29 December 2017, the Applicant filed an application in this Court for judicial review of the Authority’s decision.  The Applicant filed an amended application on 23 April 2018.

The Applicant’s claims

1. Given the grounds of review, it suffices to summarise the Applicant’s claims to protection, taking the summary from the Authority decision.  In summary:

   (a)the Applicant is a Tamil male born in the Northern Province, from an area formally controlled by the Liberation Tigers of Tamil Eelam (LTTE);

   (b)in 2006, the LTTE forced him to work full time for them;

   (c)he was ordered by the LTTE to dig bunkers and clean cemeteries where dead LTTE cadres were buried.  He did not undertake any military training with the LTTE;

   (d)in 2008 the war intensified, his area was bombed.  When the Sri Lankan Army (SLA) advanced into his area he was forced to relocate to Chettikulam Refugee camp in Vavuniya.  At the camp, the Applicant was taken and interrogated by the SLA and the Criminal Investigation Department (CID).  He was questioned about his involvement with the LTTE and he said that he had never worked for the LTTE.  The SLA released him;

   (e)SLA officers started to visit the Applicant and his family’s home and asked whether they knew the places where the LTTE hid their arms and ammunition.  The SLA would enter his family’s house and search for arms and LTTE material;

   (f)he worked for a company called Halo Trust (H Company) clearing mines.  He would drive the company truck to different areas. He would travel with his co-workers S, D and P.  They were stopped and asked whether they worked for the LTTE in the past and were beaten.  The SLA detained them until H Company secured their release.  Around May 2011, S and D were arrested by the SLA and taken to Yogapuram camp.  The Applicant’s father feared that he would be the next person to be taken away.  He does not know what happened to S and D;

   (g)his work supervisor, T, held a senior position with the LTTE and was well known in the area.  Around May 2011, the SLA came to the Applicant’s home and asked whether he knew about T’s involvement in the LTTE in the past.  He said he had no idea as he was a student.  The SLA told him that they had information on T and other Tamils working for the H Company who had experience clearing mines for the LTTE;

   (h)in March 2012, T was taken in for questioning by the SLA and released after 2 days of detention when H Company intervened.  T accused the Applicant or his friends of telling the SLA about him.  T told him that he had told the SLA about him and his friends.  T said that he should leave Sri Lanka as the Tamil militants had given false information on all of them;

   (i)in July 2012, the SLA came to the site where he was working along with other co-workers and ordered that he should report to the SLA camp immediately.  He contacted T and T said that he should flee the country or he would be taken by the SLA into prison.  The Applicant fled to Colombo with his father’s help;

   (j)after arriving in Australia, his father told him that the SLA had found out that he had fled Sri Lankan illegally by boat.  The SLA questioned his father who told them that the Applicant had fled to India; 

   (k)the Applicant fears that he will be sent to secret camps or arrested at the airport by authorities if he was to return to Sri Lanka.

The Authority’s decision

1. The Authority accepted the Applicant’s claims relating to his experiences during the time of the Sri Lankan conflict (at [13]).  The Authority also accepted the Applicant’s claims regarding the Applicant’s dealings with the SLA after the conflict (at [14]).  The Authority accepted that the Applicant was stopped and questioned by the SLA during his trips to different areas to clear mines while he was working with H Company (at [15]).  It also accepted the Applicant was detained by the SLA until H Company secured his release.  The Authority accepted that the SLA entered the Applicant’s house and searched for arms and LTTE material, and that there was still a level of suspicion directed at the Applicant due to his Tamil ethnicity and his work with H Company (at [16]). 

2. However, the Authority was not satisfied that the SLA would have suspected that the Applicant had any involvement with the LTTE.  The Authority found that the Applicant may have been wanted by the SLA or CID for questioning, but this would not have been anything other than routine questioning, and the Applicant would have been released, as he had previously been when H Company intervened, without being harmed (at [18] and [19]).  The Authority was of the view that the Applicant did not have a profile that would have attracted the attention of the Sri Lankan authorities including the SLA or the CID (at [22]). 

3. Regarding the Applicant’s Tamil ethnicity, the Authority considered country information and the Applicant’s claims that he and his family had not worked for the LTTE other than in small roles and concluded that the Applicant does not face a real chance of harm from any Sri Lankan authorities on the basis of being a Tamil male from the Northern Province or from an area formerly controlled by the LTTE, any suspicion of involvement with the LTTE, or his employment with H Company.    

4. The Authority concluded that the Applicant did not satisfy the requirements in sub-ss.36(2)(a) or (aa) of the Act, and affirmed the Delegate’s decision not to grant the Applicant the Visa.

Legislative provisions

1. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if not satisfied that the applicant satisfies the visa criteria, is to refuse the application. Pursuant to s.66, when the Minister grants or refuses a visa, the Minister is to notify the Applicant of the decision in the prescribed way. Pursuant to s.66(2)(c) the Minister must give written reasons unless the exceptions in s.66(3) applies. In this matter, as I have said above, written reasons were provided by the Delegate to the Applicant in the Record.

2. Section 67 provides:

   (1)The following decisions are taken to be made by the Minister causing a record to be made of the decision:

   (a)a decision to grant a visa;

   (b)a decision to refuse to grant a visa.

   (2)The record must state the day and time of its making.

   (3)The decision is taken to have been made on the day and at the time the record is made.

   (4)The Minister has no power to vary or revoke the decision after the day and time the record is made.

   (5)Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).

3. The meaning of “are taken” in s.67(1) and “is taken” in s.67(3) is defined in s.5 of the Act as follows:

   (23)To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.

Amended application and grounds of review

1. On 29 December 2017, the Applicant filed the application without the assistance of a legal representative.  On 23 April 2018, the Applicant filed an amended application prepared by Mr Gormly of Counsel.  It is the grounds of review set out in that document that were argued before me on 22 May 2018 (see below at [18]). 

Grounds of review

1. The amended application contains 2 grounds of review as follows (without alteration):

   The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:

   1. The Authority did not have authority to review the delegate's decision under s 473CC Migration Act 1958 (the Act) as the Minister had not validly referred the decision to the Authority under s 473CA of the Act.

   Particulars

   a. Section 473CA requires the Minister to refer a fast track reviewable decision to the Authority as soon as practicable after the decision is made.

   b. Section 67 of the Act requires the Minister to make a record of a decision to refuse to grant a visa, and that the record must state the day and time of its making, and that the decision is deemed to have been made on the day and at the time the record is made, such that the Minister is functus officio only after the Minister has stated the day and time on the decision record.

   c. The delegate's decision did not comply with s 67(2) in that it did not state the time of its making.

   d. The valid exercise of the Minister's obligations under s 473CA to refer a fast track reviewable decision was conditional upon the Minister's compliance with s 67.

   Further or in the alternative:

   2. As a result of the Minister's failure to comply with s 67(2), the Authority could not determine whether any material provided to it by the Secretary under s 473CB(1)(c) of the Act was 'new information', and as a result it was not in a position to comply with s 473DD of the Act not to consider any 'new information'; nor was it able properly to consider the exercise of the discretions otherwise available to it to consider ‘new information’ within the parameters set out in s 473DD nor was it able to determine its obligations under s 473DE of the Act in relation to giving certain ‘new information’ to the applicant for comment.

   Particulars

   a. Section 473DC(1) of the Act defines 'new information' to be documents or information that were not before the Minister when the Minister made the decision under s 65.

   b. Section 67(3) provides the Minister's decision is taken to have been made on the day and at the time the record is made.

2. At the heart of the Applicant’s grounds of review is that the Record did not state the time the decision was made, and as a consequence the decision of the Delegate cannot be taken to be made under s.67 of the Act. As a consequence, the Delegate’s jurisdiction has not been exhausted or functus officio, and the referral by the Secretary to the Authority is invalid. In the alternative, the Applicant says the Authority’s jurisdiction is infected with error as it is not possible for the Authority to know whether or not review material given to it by the Secretary was “new information”.

Relief sought in the Amended application

1. The Applicant in his amended application filed on 23 April 2018 seeks the following final orders:

   1. An order that the decision of the Immigration Assessment Authority be quashed.

   2. An order the first respondent Minister pay the Applicant’s costs.

   3. Any further or other orders that the Court thinks fit.

Proposed further amended application

1. During the course of argument at the hearing before me, Mr Bevan, Counsel appearing on behalf of the Minister, raised concerns that the relief sought in the amended application does not affect the decision of the Authority, and thus does not invoke the jurisdiction of the Court.  Mr Gormly subsequently sought leave to file a further amended application.  I made directions for the filing and service of any draft of proposed amended further prayers for relief and any further amended application, and for both counsel to serve further submissions addressing the question of leave, and any matters raised if leave were granted.

2. On 23 May 2018 the Applicant filed a proposed further amended application which sought two further orders, numbered as follows (re‑numbering the paragraphs):

   2. An injunction to issue restraining the Minister from acting upon the decision of the Immigration Assessment Authority.

   3. A writ of mandamus to issue compelling the Minister to determine the applicant’s application for a Safe Haven Enterprise (subclass) 790 visa according to law.

3. The grounds contained in the proposed further amended application remained the same.

Evidence

1. The reasons contained in the Record were signed by the Delegate, their position number recorded, and the Record dated.  The material before the Delegate was referenced in an attachment A. 

2. The evidence before me was that the Department maintains two databases relevant to the making of decisions to grant or refuse visas: first, the Integrated Client Services Environment (ICSE) which contains records relating to matters including the lodgement and processing of protection visa applications, and second, the Total Records Information Management system (TRIM) database, in which copies of documents are kept.

3. The Department’s practice is for the delegate to prepare written reasons in the form of a protection visa decision record.  The delegate then records the decision as an event in the Department’s ICSE database.  Relevant documents and correspondences relating to certain visa applications are saved into the TRIM database.  Thus, TRIM will contain a copy of the delegate’s decision that can be accessed and read, while ICSE will contain a record of it having been made as well as the date and time on which it was made.

4. The system followed by delegates when refusing a visa application is:

   1. a delegate prepares written reasons for his or her decision in the format of a “Protection Visa Decision Record”;

   2. the delegate records the refusal decision as an event in ICSE;

   3. once a Protection Visa Decision Record is prepared, it may either be saved into TRIM and printed or attached in electronic form to the notification of refusal letter through the Department’s Enterprise Correspondence System (ECS);

   4. the delegate prepares the notification of refusal letter through the ECS;

   5. the delegate collates the letter, the written reasons for decision and any other relevant documents to be sent to the visa applicant, and places them in a registered post envelope for dispatch, which displays the registered post tracking number;

   6. the delegate records the registered post tracking number onto ICSE and/or saves a copy of the registered post envelope (which shows the registered post tracking number) onto TRIM.

5. Two screenshots of the Department’s ICSE database relating to the Applicant’s Visa application were in evidence. The first screenshot showed the generation of a notification of refusal letter through ECS and finalisation of it on “21/04/2017” at 11:09:36.  The screenshot also showed that a letter was sent to the Applicant in Australia on 21 April 2017, and recorded a registered post reference identifier. 

6. The second screenshot relevantly showed the following:

   Event:            Refused

   Qualifier: s36(2) Not Satisfied

   Effect Date:   21/04/2017

   Effect Time:  11:01

Submissions

Arguments concerning amended application and application for leave

1. The Minister opposed the grant of leave to rely on the proposed further amended application.  Mr Bevan contends that the Applicant had only asked the Court to set aside the Authority’s decision but had not asked the Court to direct the Authority to do anything.  Rather order 3 of the proposed amended application sought a writ of mandamus directed at the Minister, and by extension his Delegate, to determine the Applicant’s application for the Visa, and Mr Bevan contends that the Delegate’s decision in this matter is a “primary decision” under s.476(2)(a), which this Court does not have jurisdiction to review. Thus the Court could not issue an order in the terms of the writ of mandamus in order 3.

2. Mr Gormly argues that the Delegate’s decision is not a “primary decision” as defined in s.476(4)(c) until the time is recorded on the decision record. As the Delegate’s decision is affected by jurisdictional error by the failure to provide a time stamp on the Record, that decision is not a decision “that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed)” pursuant to s 476(4)(c).

1. Mr Bevan references the High Court’s decision in Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 at [52]. In that case, the Court held that “a fast track reviewable decision is nothing more than a decision to refuse to grant a protection visa to a fast track applicant that is made in fact” at [69]. Mr Bevan contends that the Delegate’s decision having been made in fact, the Authority had jurisdiction to review the decision in accordance with Part 7AA (at [27]). Mr Gormly does not dispute a valid decision was made in fact by the Delegate. However, Mr Gormly contends that the Delegate’s decision was infected by jurisdictional error, despite the fact that the Delegate’s decision was in fact made. He submits that although a decision in fact has been made by Delegate, the Delegate’s jurisdiction is not functus officio i.e. not exhausted.

2. As the issue of whether the Delegate’s decision is a “primary decision” is central to the issues raised in the Applicant’s grounds, I will return to my ruling on the proposed further amended application at the conclusion of these reasons.

Applicant’s submissions on the grounds

1. Mr Gormly submits that s.67(3), read with s.5(23), is to the effect that a delegate’s decision is “deemed” to have been made on the day and time the record is made. Mr Gormly contends that the protection visa decision record – the Record – is the record for the purposes of s.67(1) because it is the first record of the decision. Where the Delegate has not included both the time and date on the protection visa decision record (as in the present case), the Delegate’s obligation and power under s.67(2) has not been exhausted.

2. I note that Mr Bevan submits that s.67(5) says that non-compliance with s.67 does not affect the validity or finality of the decision. However, Mr Gormly argues that s.67(4) and (5) is only relevant to circumstances where the decision has been taken to be made.

3. The Applicant contends that because the Delegate was not functus officio of its obligations under s.67(2), the referral of the Delegate’s decision to the Authority under s.473CA was invalid, and hence the Authority lacked jurisdiction to review the decision. The obligations on the Minister under s.473CA to refer a fast track reviewable decision are engaged only after the decision is made. Mr Gormly submitted that as the decision cannot be taken to be made, the obligation to refer the matter to the Authority does not arise.

4. In the alternative, the Applicant argues that the time stamp is central to the Authority’s jurisdiction as that is the reference by which the Authority would know what would or would not be new information. Pursuant to s.473CB(1)(c), “the Secretary must give to the Immigration Assessment Authority…material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA” which includes “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”.  The definition of “new information” in s.473DC(1) is defined as information that “were not before the Minister when the Minister made the decision under s.65”.

5. Mr Gormly submits that the Authority could not recognise “new information” within the material from the Secretary pursuant to s.473CB(1)(c) because the Delegate’s decision (that is, the Record) did not allow the Authority to recognise the time when the decision is made and therefore to assess what information the Secretary provided to it under s.473CB(1)(c) was “new information”.  

6. The Authority was also not in a position to properly determine its obligations under s.473DE (regarding giving certain “new information” to the Applicant for comment) or s.473DD (not to consider new information unless there are exceptional circumstances).

The Minister’s submissions on the grounds

1. Mr Bevan submits that the purpose of s.67 is not to deem the making of a decision under s.65; it is to fix the method by which, and the time at which, a decision is made.

2. Mr Bevan says that “record” is not defined in s.67(1). It should be given its ordinary English meaning, namely, “a written or otherwise permanently recorded account of a fact or event”: Shorter Oxford English Dictionary, sense 3(b). 

3. Mr Bevan submits that the ICSE record is a permanent record of the fact of the Delegate’s decision, as well as the time and date of the decision having been made. Upon making of ICSE record, the decision becomes final and the Delegate becomes functus officio. The Record (and the mailing of a copy of the Record) satisfies the requirements under s.66 that the Minister must provide reasons to the Applicant. For the purposes of s.67, the date and time of the decision is recorded in the ICSE database and this recording satisfied the statutory requirements.

4. The Minister also submitted that the alternative ground raised by the Applicant is hypothetical.  Neither the pleaded ground nor the submissions identify with specificity, or at all, the information that the Applicant says was dealt with erroneously by the Authority.  For example, the Applicant does not identify information that was either “new information” which was not considered but should have been, or “new information” which was considered but should not have been, or information which was “not new information” which was not considered but should have been.  It is incumbent on the Applicant to articulate the allegation of error with particularity.

Applicant’s submissions in reply

1. In oral submissions addressing Mr Bevan’s contention that the Applicant’s complaint is hypothetical, Mr Gormly submits that the Applicant does not know what precise information was submitted to the Authority by the Secretary.  There might have been information that came in after the referral was made, which would be new information that the Authority was bound to assess under s.473DD.

Consideration

1. As I have stated above, the grounds and particulars articulated in the amended application filed in this matter are the same grounds relied on by the applicant in DQX16.  

2. As his Honour said of the applicant’s arguments on the same grounds in DQX16 at [18]:

   18.These arguments fail at the threshold. Whilst the statement of reasons prepared by the delegate pursuant to s.66 of the Act did not state the time when the decision was made, there was a record made of the decision which did. That record complied with s.67. The applicant has not established the matter critical to his arguments and so the application must be dismissed.

3. His Honour referred to the ICSE database screenshots stamped with effect time and date in evidence before him, which are, relevantly, the same kind of information and detail as is in evidence before me (but with the details specific to this Applicant) (see DQX16 at [27]-[28]). His Honour concluded at [29]:

   29.… I am satisfied that, upon making of the decision to refuse the applicant a protection visa, a record was made of that decision stating the date and time of the making of the decision. The error in the applicant’s argument was to mistake the written reasons for the delegate’s decision prepared under s.66 of the Act for the record made of the decision under s.67 of the Act. In those circumstances, s.67 of the Act was complied with and the issues raised by the applicant do not arise. On any view of the operation of ss.65 and 67, the decision was “made” within the meaning of s.473CA and s.473CB by 13:05 on 8 September 2016. A letter from the Authority to the applicant establishes that the matter was referred to the Authority on 14 September 2016, after the decision was made.

4. The facts of the present matter compel the same conclusion.  As I have set out above at [25], there is in evidence a copy of a screenshot of the Department’s ICSE records in relation to the Applicant’s Visa application.  The ICSE records the “Effect Date” as 21 April 2017, and the “Effect Time” as 11:01. Upon the making of that record, the Delegate's decision became final; that is, the Delegate became functus officio in respect of his decision-making power under s.65(1) such that the Delegate could not vary or revoke that decision.

5. The record of the time and date of the decision entered in the ICSE database satisfies the requirement in s.67(3). The decision was “made” within the meaning of s.473CA and s.473CB by 11:01 on 21 April 2017. The letter from the Authority to the Applicant on 27 April 2017 establishes that the matter was referred to the Authority on 27 April 2017, after the decision was made. It follows that I am satisfied that the Delegate’s decision was a “primary decision” under s.476(2)(a).

6. The Applicant’s proposed further amended application would be futile.  The Applicant cannot properly invoke the Court’s jurisdiction with respect to the writ of mandamus sought against the Delegate.  I decline to grant leave to further amend the application.

Conclusion

1. For the above reasons, I dismiss the application, and order the Applicant pay the Minister’s costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 8 May 2019