CSY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 294

FEDERAL COURT OF AUSTRALIA

CSY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 294 Appeal from: CSY16 v Minister for Home Affairs & Anor [2019] FCCA 1040

File number: NSD 669 of 2019

Judge: YATES J

Date of judgment: 11 March 2020

Catchwords: MIGRATION – Safe Haven Enterprise visa - review of Immigration Assessment Authority decision – whether Authority misconstrued s 473DD of the Migration Act 1958 (Cth) - no jurisdictional error

Legislation: Migration Act 1958 (Cth) s 473DD

Date of hearing: 11 February 2020

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 20

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

Counsel for the Respondents: Mr D H Hughes

Solicitor for the Respondents: DLA Piper

ORDERS NSD 669 of 2019

BETWEEN: CSY16 Appellant

AND: MINISTER FOR HOME AFFAIRS First Respondent

IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE: YATES J DATE OF ORDER: 11 MARCH 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J: INTRODUCTION 1 On 30 September 2015, the appellant applied for a protection visa (a Safe Haven Enterprise visa). The application was refused by a delegate of the Minister for Home Affairs (the Minister). The decision was referred to the second respondent, the Immigration Assessment Authority (the IAA), for review. The review was unsuccessful, but that decision was quashed by the Federal Circuit Court of Australia (the Federal Circuit Court) and the review was remitted to the IAA for reconsideration. On reconsideration, the IAA again affirmed the delegate's decision. 2 The appellant then applied to the Federal Circuit Court for judicial review of the IAA's new decision. The Federal Circuit Court was not persuaded that the IAA's new decision was affected by jurisdictional error and dismissed the application. The appellant now appeals to this Court from the Federal Circuit Court's judgment. 3 There are two grounds of appeal. They relate to the IAA's decision not to consider "new information" when carrying out its review. In this connection, s 473DD of the Migration Act 1958 (Cth) (the Act) provides: For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 4 The first ground of appeal, as particularised, is that the IAA did not engage fully with the issue of "exceptional circumstances" referred to in s 473DD. The material sought to be advanced concerned serious issues which could have affected the outcome of the review and, according to the appellant, the IAA relied upon the lateness of the submission of the new information as the primary reason for not considering it. Thus, the appellant says, the IAA did not carry out a meaningful review. 5 The second ground of appeal is that the Federal Circuit Court should have found that the IAA fell into error by failing to take into account and ignoring the roles and associations of the appellant's brother and sister with the Liberation Tigers of Tamil Eelam (the LTTE).