GCS18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 208
Federal Circuit and Family Court of Australia
(DIVISION 2)
GCS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 208
File number(s): MLG 3568 of 2018 Judgment of: JUDGE YOUNG Date of judgment: 21 March 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of the delegate to refuse a visa – where the matter has travelled in tandem with the applications of the applicant’s wife and child – where it was decided that there was no jurisdictional error in the wife’s application – where the applicant is using this application to allege that the Authority made an error in the wife’s applicant – where the applicant is estopped from making this argument – where the arguments raised are inconsistent with the principle of legality Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 23 February 2023 Place: Darwin Counsel for the Applicant: Mr Kikkert Solicitor for the Applicant: Cifuentes Lawyers Counsel for the Respondents: Ms Battiste Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 3568 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GCS18
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
21 March 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the Minister’s costs in the sum of $8,371.30.
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
Ex TemporeJudge Young
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 22 October 2018 to affirm a decision of the Minister’s delegate made on 17 September to refuse a visa.
This matter of GCS18 has travelled in tandem with the matter of FJD18 and FKJ18. FJD18 is the wife of the present applicant and FKJ18 is the child of the present applicant. When the application for judicial review of the Authority’s decision in FJD18 and FKJ18 came before me on 19 October 2022, I was told that it had been agreed that the application of GCS18, which was to be heard at the same time or following FJD18, was to be adjourned by agreement between the Minister and the applicant in GCS18 because the same issues arose.
These reasons should be read in conjunction with the ex tempore reasons I delivered in FJD18 and FKJ18 on 19 October 2022. In particular, the factual background is set out in those reasons. In very brief terms, the wife of the present applicant was previously married. She was divorced from her previous husband and married the applicant. It was said that the former husband of the applicant’s wife had threatened, persecuted, and indeed attempted to kidnap FJD18 in Iran.
For reasons related to credibility, the Authority rejected FJD18’s application. On an application for judicial review, FJD18 asserted that the Authority had wrongly refused to consider new information, and in particular, had failed to treat the elements in section 473DD (a) and (b) as distinct, and failed to consider the entirety of the circumstances justifying the consideration of the new information.
In that proceeding, it was asserted that the Authority had failed to discharge its statutory task under section 473DD of properly assessing the separate roles of subsection (a) and subsection (b). I concluded that the Authority had not committed the jurisdictional error or errors that the applicant asserted in that case.
Prior to the hearing on 22 October 2022, the applicant GCS18 had amended his application for judicial review. The original application for judicial review filed on 26 November 2018 had raised a variety of grounds but essentially asserted that there was an insufficient logical or evidentiary basis for the Authority to reject JCS18’s claims. Essentially, those claims were rejected on the grounds that the Authority did not consider JCS18 to be a credible witness.
Those grounds were abandoned on the filing of an amended application for review, as I say, on 23 September 2022. That is, after the Authority’s decision in FJD18 but before my decision in FJD18 and FKJ18 on the application for judicial review. Mr Kikkert, appearing for the applicant has told me that he does not press grounds 2 and 3 and does not rely on particulars (d) and (f) in ground 1. The decision in FJD18 and FKJ18 was not the subject of appeal. Ground 1 of the amended application in this matter reads as follows:
In the related IAA matter relating to FJD18 and FKJ18, the IAA fell into jurisdictional error in that it did not perform the procedural duty imposed on it by section 473DD of the Migration Act and its conduct of the review. As the two matters are related, the IAA’s error in FJD18 and FKJ18’s matter also caused GCS18’s matter to become tainted with jurisdictional error, and the particulars are as follows:
(a)FJD18 and FKJ18 provided “new information” by way of submissions dated 17 May 2018 (please see para [6] of the FJD18 and FKJ18 decision)
(b)This “new information” included details of the first applicant’s sexual relation with R while married with A.
[I interpolate that the reference to the “first applicant” in that particular is a reference to FJD18].
(c)The IAA was required to access this “new information” against the criteria specified in both 473DD(d)(i) and section 473DDB(ii) and then make an assessment against the criterion specified in section 473DDA.
(d) [not relied on]
(e)There is no evidence of the IAA considering any relevant circumstances beyond those in section 473DDB of the act in regards to FJD18 and FKJ18. Rather, the Authority jumped straight from considering 473DDB to concluding “Taking everything into consideration, I am not satisfied there are exceptional circumstances to justify considering this new information.” (please see paragraph 9 of the IAA decision record which is a reference to the decision record in FJD18, as I understand it.)
(f) [not relied on]
(g)Because there is such an overlap and interrelationship between these two matters, the IAA’s error in FJD18 and FKJ18’s matter also caused GCS18’s matter to become tainted with jurisdictional error.
The argument set out in that ground and the particulars I have referred to appears to me to be relevantly indistinguishable from the argument that was advanced in the judicial review application in FJD18 and which was unsuccessful.
If the issue raised in this application, that is, that there was an error in the Authority’s decision of FJD18, and the error asserted in this application is in fact the error that was the subject of the judicial review application before me in FJD18 and that was unsuccessful, that matter is the subject of issue or legal estoppel, and this application cannot be used as a mechanism for traversing that conclusion. The applicant is estopped from doing so.
If it is not exactly the same issue, and I must say I had some difficulty understanding Mr Kikkert’s submissions, then it appears to me that it is nevertheless an assertion that there was jurisdictional error in another decision which, as the applicant puts it in this case, is intimately connected to this matter.
Assuming for the sake of argument that that is correct, the decision of the Authority in FJD18, in my view, having been subject to an unsuccessful judicial review application and then not being the subject of later appeal, is not to be understood as containing a relevant error or an error of the kind asserted in this proceeding.
I was not referred to any Authority on the point by either counsel for the Minister or counsel for the applicant, so it is not a matter in which I have undertaken research. It appears to me that the argument raised in this application that there was jurisdictional error in another proceeding, which has been the subject of a review and a review decision from which there has been no appeal is, as Ms Battiste says, an impermissible collateral attack on that other decision.
I am not entirely sure that collateral attack is the correct description. It appears to me that what is being done or attempted to be done here today in some sense is inconsistent with the principle of legality. That is,– and I am aware of course that we are talking about an administrative decision rather than a judicial decision –a decision which has not been overturned by way of a judicial review or appeal or any other matter, ought to be considered to be correct. In my view, it is something approaching abuse of process to found this application on an assertion that that another proceeding contains some relevant error.
If my rather hasty analysis today of those matters is wrong, no doubt the applicant will have a right to have the matter ventilated on an appeal. But I am not satisfied that the arguments that have been advanced are meritorious – and I say meritorious because essentially, it appears to me the practical arguments are the same as those which were rejected in FJD18 – nor are they permissible. I am not convinced it is permissible for the applicant to raise the arguments in the way that the applicant attempts to do.
The application is dismissed.
There will be an order that the applicant pay the Minister’s costs in the sum of $8,371.30.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 21 March 2023
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