FMQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1884

FEDERAL COURT OF AUSTRALIA

FMQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1884 Appeal from: FMQ17 v Minister for Home Affairs & Anor [2019] FCCA 1329

File number: VID 614 of 2019

Judge: O'CALLAGHAN J

Date of judgment: 18 November 2019

Legislation: Migration Act 1958 (Cth)

Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Date of hearing: 8 November 2019

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No catchwords

Number of paragraphs: 37

Counsel for the Appellant: The appellant appeared in person with the aid of an interpreter

Counsel for the First Respondent: M Hosking

Solicitor for the First Respondent: Mills Oakley

ORDERS VID 614 of 2019

BETWEEN: FMQ17 Appellant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent

IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE: O'CALLAGHAN J DATE OF ORDER: 18 November 2019

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs". 2. The proceeding be dismissed. 3. The appellant pay the first respondent's costs, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O'CALLAGHAN J: 1 This is a case that raises no issues of law, precedent or any other matter of general significance and involves three grounds of appeal, each of which is without any merit. 2 The appellant appeals from a decision of the Federal Circuit Court of Australia made on 23 May 2019, dismissing the appellant's application for judicial review of a decision of the Immigration Assessment Authority (the Authority), which affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (visa). 3 The appellant is a citizen of Sri Lanka. He arrived in Australia in October 2012 as a so-called "unauthorised maritime arrival" and participated in an entry interview. 4 Four years later, after the Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (the Act), the appellant made an application for a visa. 5 On 16 March 2017, the appellant participated in an interview. 6 On 8 June 2017, a delegate of the Minister found that the appellant did not meet the criteria in ss 36(2)(a) or (aa) of the Act, and therefore refused the appellant's visa application. 7 Because of the timing of his arrival in Australia, and his status as a unauthorised maritime arrival, the appellant was deemed to be a "fast track applicant" under s 5(1) of the Act, and was therefore subject to the merits review framework and procedure set out in Part 7AA of the Act. 8 On 13 June 2017, the Department referred the delegate's decision to the Authority for review. 9 On the same date, the Authority sent to the appellant a copy of its fact sheet and Practice Direction which noted, among other things, that the appellant could provide a written submission and new information to the Authority. 10 The appellant later provided a written submission to the Authority, which relevantly provided as follows: Respected Sir/Madam I had received your email regarding the visa rejection details. I can't agree the reason for which you made the decision to reject my visa because of many things. The major fact is that for everyone who is standing outside, it may be a case of someone. For me it's my life, so only I know the real situation which is happening over in srilanka. For your information I can attach you some of the important documents to prove my case is genuine. In the attached files you can see two photographs; My Father's Identity Card in France. For my family it's a huge life threatening issue to live over there in srilanka. Because of these problems my family is still running from place to place for a living. So still I have the same serious threat to my life, if I go back there in srilanka. No one will love to die by knowing all these things. I want to live my life peacefully so that why I came here in Australia. And also please forgive my late reply. Thank you. (Errors in original). 11 On 7 December 2017, the Authority affirmed the delegate's decision not to grant the applicant a protection visa. 12 The appellant claimed to have a well-founded fear of persecution in Sri Lanka, or to face a real risk of significant harm in Sri Lanka, on the basis that he is a Tamil and that he has an imputed pro-LTTE political opinion. 13 In addition, the material before the delegate and the Authority gave rise to further claims on the basis that the appellant also would return to Sri Lanka as a failed asylum seeker, and as a person who had departed Sri Lanka illegally. 14 In his statutory declaration provided with his visa application, and in his interview with the delegate, the appellant also made a number of claims relating to his past treatment by the Sri Lankan authorities. 15 In making its decision, the Authority had regard to the written submission provided by the appellant, set out at [10] above. The Authority noted, however, that the submission did not say why the delegate's decision was incorrect. 16 The Authority also noted that it had received the document which the appellant said was a copy of his father's French identity card. The Authority considered that this document, which was not before the delegate, was "new information" within the meaning of s 473DC(1) of the Act. However, pursuant to s 473DD of the Act, the Authority found that it was prevented from considering the new information, because it was not satisfied that: there were exceptional circumstances for considering the new information; the information could not have been provided to the delegate; or the information was not previously known and that, had it been known, the information may have affected the consideration of the appellant's claims. 17 The Authority accepted some parts of the appellant's claims, in particular that: the appellant was a citizen of Sri Lanka, even though he was born in India; the appellant's family moved to Sri Lanka in June 2005; between June 2005 and September 2006, the appellant's father was detained and mistreated by the Sri Lankan army and suffered a broken leg; in September 2006, the appellant's family returned to India; in May 2012, the appellant's family again returned to Sri Lanka; and in July 2012, after returning from India, the applicant was detained and questioned by Sri Lankan authorities. 18 The Authority did not, however, accept that: the appellant or his father were ever of interest to the Karuna Group; the appellant's uncle was detained and treated badly by the Sri Lankan police in June 2012; two men burst into the appellant's family home in July 2015 and threatened his father with guns; the appellant's family home was ransacked in June 2015; the Sri Lankan authorities maintained an ongoing interest in the appellant in 2015; or the appellant or his father were suspected of having an ongoing relationship with the LTTE in 2006 or after 2012. 19 On the basis of these findings and relevant country information, the Authority found that the appellant did not face a real chance of serious harm in Sri Lanka by reason of his Tamil ethnicity or an imputed pro-LTTE political opinion. The Authority also found that the appellant did not face a real chance of serious harm in Sri Lanka by reason of being a failed asylum seeker, or having departed Sri Lanka illegally. 20 The Authority found that the appellant did not face a real risk of significant harm in Sri Lanka by reason of his illegal departure, or for any other reason. 21 On the basis of its findings, the Authority found that the appellant did not meet the criteria in ss 36(2)(a) or (aa) of the Act, and therefore affirmed the delegate's decision. 22 The appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority's decision on the following grounds: 1. The [Authority] constructively failed to review the [delegate's] decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information 2. The [Authority] denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the [Authority] fell into error/denied the Applicant procedural fairness. (Errors in original). 23 The primary judge gave a detailed account of the appellant's claims, the delegate's decision, the Authority's decision, and the applicable principles, and rejected both grounds of appeal. 24 The appellant now seeks to appeal from the judgment of the Federal Circuit Court on the following grounds, which substantially replicate the grounds contended for below: 1. The Federal Circuit Court erred in not finding the [Authority] denied the [appellant] procedural fairness and/or made an error of law because the [appellant] was refused to represent his claims orally. 2. The Federal Circuit Court erred in not finding the [Authority] denied the [appellant] procedural fairness and/or made an error of law because the [Authority] constructively failed to review the delegate's decision, denied the [appellant] procedural fairness in its failure to sufficiently raise critical matters with the [appellant] and/or extended to him a real opportunity to reply to adverse information. 25 At the hearing, counsel for the Minister, Mr M Hosking, agreed that the notice of appeal is to be taken as raising three grounds: (1) the Authority erred because it did not invite the appellant to an interview; (2) the Authority erred because it failed to consider clearly articulated claims or claims that arose from the material before it, such as to constitute jurisdictional error; and (3) the Authority denied the appellant procedural fairness because it did not give him an opportunity to respond to adverse information.