FEDERAL COURT OF AUSTRALIA

AZJ16 v Minister for Immigration and Border Protection [2018] FCA 1390

ORDERS

THE COURT ORDERS THAT:

1.    Application for extension of time to appeal refused.

2.    The applicant to pay the first respondent's costs to be assessed, if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant seeks an extension of time to appeal from a decision of the Federal Circuit Court of Australia to dismiss an application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the decision of the Minister's delegate to refuse to grant to the applicant a safe haven enterprise visa (SHEV): AZJ16 v Minister for Immigration and Border Protection [2018] FCCA 365.

Background

2    The applicant is a citizen of Sri Lanka. In September 2012 he was taken to Cocos Island after the boat he was on was intercepted by Australian authorities. He was later transferred to the Australian mainland and granted a temporary safe haven visa and released from detention.

3    The Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Act) to allow the applicant to lodge a temporary protection visa or a SHEV. On 10 September 2015 the applicant lodged an application for a SHEV.

4    On 17 February 2016 a delegate of the Minister refused the applicant's application for a SHEV.

5    Pursuant to s 473CA of the Act, the delegate's decision was referred to the Authority for fast track review. Such a review proceeds under Part 7AA of the Act, as discussed below.

6    On 18 February 2016 the Authority wrote to the applicant informing him of the review.

7    Material provided to the Authority under s 473CB of the Act for the purpose of its review included a certificate issued under s 473GB of the Act (Certificate).

8    On 31 October 2016 the Authority decided to affirm the decision not to grant the applicant a SHEV.

9    The applicant applied to the Federal Circuit Court for judicial review of the Authority's decision and that application was dismissed.

10    The applicant now seeks an extension of time in which to appeal from the decision of the Federal Circuit Court.

11    The applicant was obliged to file an appeal by 7 March 2018, but it was filed 16 days late. That is not an inordinate delay, taking into account that at the time it appears the applicant was self-represented. The explanation for the delay was his difficulty in finding a lawyer to assist with an appeal. However, as is well established, the merits of any proposed appeal are relevant to the question of whether an extension of time should be granted.

12    The original proposed notice of appeal referred to grounds that are no longer pursued.

13    On 10 August 2018, by way of submissions filed on the applicant's behalf, counsel indicated that the applicant only intended to pursue one ground of appeal, being that:

Her Honour erred by failing to discern jurisdictional error in circumstances where the [Authority] had acted on a certificate invalidly issued under section 473GB of the Migration Act or alternatively denied the [applicant] procedural fairness as defined in the Act.

14    Counsel for the Minister had no difficulty in proceeding with the hearing on the basis that the extension was sought to pursue this new proposed ground of appeal.

15    It is not in issue that the documents the subject of the Certificate were not and have not been disclosed to the applicant.

Summary of claim

16    The applicant claims to be an ethnic Tamil of Hindu religion from Batticaloa in Sri Lanka. He claimed that in 2006 he was arrested and tortured by the Karuna group that suspected he had links to the Liberation Tigers of Tamil Eelam (LTTE) from which the Karuna group had split. He was held for two months in a camp before he managed to escape. He left Sri Lanka legally in 2007 and lived and worked in Qatar until 2011 when he returned to Sri Lanka. He did not have any issues at the airport upon return, but claimed that members of the Karuna group began searching for him. He therefore left Sri Lanka again in September 2012. He claimed that he would face harm as someone suspected of links to the LTTE, especially as a male Tamil from the east, and he would be harmed by the Karuna group and the Sri Lankan Army. He also claimed that he would face harm as someone who left Sri Lanka illegally and sought asylum in Australia.

The Authority's decision

17    The Authority accepted parts of the applicant's claim, including that he was abducted by the Karuna group and released, but found his release indicated he was no longer of interest to them. It noted the applicant had been able to travel and work. It did not consider he would be imputed with any association with the LTTE or was of interest to other Sri Lankan authorities. Given his lack of adverse profile and taking into account country information relating to the position of failed asylum seekers, it did not consider the applicant would be subjected to harm on his return to Sri Lanka, or face any real chance of harm or significant risk of harm. It did not consider the applicant met the refugee or complementary protection criterion.

Before the Federal Circuit Court

18    The issue as to the Certificate was not raised before the primary judge. The application for review was dismissed on the basis of grounds relating to the Authority's reasons that are not pursued.

Legislative framework of Part 7AA

19    The operation of Part 7AA is discussed extensively in, for example, Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [13]-[38] (Gageler, Keane and Nettle JJ).

20    Part 7AA of the Act is headed 'Fast Track Review Process in Relation to Certain Protection Visa Decisions'. Section 473BA explains that Part 7AA provides for a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants. It is 'a mechanism designed to result in an automatic review of a fast track reviewable decision': Plaintiff M174 at [15].

21    Division 3 of Part 7AA is entitled 'Conduct of Review'. Section 473DA addresses the natural justice rule in the context of reviews by the Authority:

Exhaustive statement of natural justice hearing rule

(1)    This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)    To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

22    Division 3 includes a range of provisions that provide for and limit any requirement to consider new information or interview the referred applicant. It has been observed that s 473DA restricts the first limb of natural justice (the fair hearing rule), but does not purport to affect the second limb (bias): Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [18].

23    Division 6 deals with disclosure of information. In particular, s 473GB provides for the issue of a Certificate (as occurred in this case) as follows:

Immigration Assessment Authority's discretion in relation to disclosure of certain information etc

(1)    This section applies to a document or information if:

(a)    the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the Certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:

(a)    must notify the Authority in writing that this section applies in relation to the document or information; and

(b)    may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

(a)    may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

(4)    If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

(5)    The Minister may issue a written certificate for the purposes of subsection (1).

The Certificate

24    The relevant part of the Certificate issued on 17 February 2016 in this case states as follows:

I notify the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in the document titled GAB066 DRAFT IMAPS Identity Assessment form contained in PDF Portfolio D-1-PRID605584021 - [Applicant's name]

In my view, this document or information should not be disclosed to the referred applicant or the referred applicant's representative because the disclosure of any matter contained in the document would be contrary to the public interest because the document is an internal working document which contains details of investigative/intelligence methods used by the Department in verifying the identity and claims of the applicant.

25    The applicant submits that the Certificate is invalid on its face because it makes reference to the fact that the documents covered are internal working documents, which is not a matter specified in s 476GB(1)(a) or (b).

26    The Minister accepts that the fact alone that a document is an 'internal working document' is not a basis for a claim of public immunity indemnity: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [35]-[38]. However, the Minister contends that the applicant's argument 'fails to grapple with the operative reason for the issuing of the Certificate, being that it contains details of investigative/intelligence methods used by the Department in verifying the identity and claims of the applicant'. The Minister contends that it is clear on the face of the Certificate that it relates to identity assessment.

27    The Minister says that the Courts have recognised the importance of protecting sensitive intelligence gathering methodologies (relying on cases in the common law or criminal context such as Jarvie v The Magistrates' Court of Victoria at Brunswick [1995] 1 VR 84 at 88). The Minister says the statement in the Certificate therefore identifies a basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding within the meaning of s 473GB(1)(a) (the exceptions provided by s 473GA are not relevant), and that it is at least arguable that the Certificate is valid.

28    Regardless of that issue, the Minister says that the proposed ground of appeal has no prospect of success because:

(a)    even if the Certificate were invalid, reliance on an invalid certificate did not lead to any jurisdictional error; and

(b)    having regard to the statutory scheme, any failure by the Authority to disclose the Certificate did not amount to any breach of procedural fairness.

Minister for Immigration and Border Protection v BBS16

29    The Minister relied for those propositions upon the Full Court decision in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [88]-[99] and [100].

30    In BBS16 the Court was also concerned with Part 7AA and a certificate issued under s 473GB. Before the Federal Circuit Court it was argued that the Authority had acted on an invalid certificate or, alternatively, the Authority had denied the first respondent procedural fairness (the same arguments that the applicant now wished to raise in this Court).

31    The Minister did not contest that the certificate was invalid. All that was known about the information referred to in the certificate was that it related to an 'Identity Assessment Form'. Nor did he seriously dispute that the Court should infer that the Authority had considered the certificate, because the Authority said in its reasons that it had regard to the material referred to it under s 473CB.

32    The applicant (first respondent) had claimed that it was a jurisdictional error to rely upon an invalid certificate, relying on MZAFZ, a case which concerned Part 7 of the Act.

33    The Court held that the reasoning in MZAFZ did not apply in the context of an invalid certificate under Part 7AA, and that the issue is properly addressed by reference to s 473GB itself. It noted that it is a matter for the Authority to consider whether or not it will have regard to any matter contained in the material (including the certificate) and, as part of its consideration, it will need to consider whether the certificate is valid. It concluded as follows:

[97]    The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA's determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).

[98]    As senior counsel for the Minister frankly acknowledged in oral address, this is truly "a remarkable scheme". That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.

34    The Court also held that a referred applicant's procedural fairness entitlements in respect of s 473GB certificates and related information are exhaustively stated in s 473GB(3). Accordingly, failure to disclose the certificate did not constitute a contravention of the statutory scheme in Part 7AA relating to procedural fairness.

AYF16 v Minister for Immigration and Border Protection

35    The applicant had initially sought an adjournment of this application pending the decision of the Full Court in AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129, an adjournment that was opposed by the Minister. Coincidentally, on the morning of the hearing before me, the Full Court published its reasons. I granted the parties an opportunity to file any further written submissions dealing with that decision.

36    AYF16 concerned an application for an extension of time within which to appeal from a decision of the Federal Circuit Court dismissing the applicant's claim that the Authority had acted upon a certificate invalidly issued under s 437GB of the Act, or alternatively denied the applicant procedural fairness. As in BBS16, the Minister conceded that the Certificate was invalid as the only reason given for non-disclosure was that 'disclosure would be contrary to the public interest because it is a Departmental working document' (at [11]). The applicant in AYF16 argued that BBS16 was clearly wrong, arguing that the inability of any applicant to make a submission that an invalid process was going to be applied to him or her under the Act is in itself a denial of procedural fairness. The applicant also agitated arguments that had been unsuccessful in BBS16.

37    Having carefully considered BBS16, the Full Court in AYF16 found that it could not conclude on the basis of any argument advanced for the applicant that the reasoning of the Full Court in BBS16 was wrong, and that the arguments sought to be raised had already been raised and rejected or depend upon their cogency for propositions that had been rejected.

Determination

38    The merits of the applicant's proposed appeal rest upon BBS16 and AYF16 being incorrectly decided. In written submissions provided to me after the hearing, counsel for the applicant accepted that having read AYF16, BBS16 was not 'plainly wrong'.

39    The factual scenarios relating to the certificate in each of BBS16, AYF16 and the Certificate in this matter are sufficiently similar to preclude any relevant point of distinction. In each, the reasons of the Authority do not suggest identity was a reason for the refusal of a visa application. In each, the respective referred applicants were not provided with the documents at the time of the Authority's review. The Certificate in this case provided some further information than was the case in BBS16 and AYF16, but was similar. It is unnecessary to decide whether the Certificate is valid because even if it were invalid, the result would be the same.

40    The applicant does not seek to otherwise challenge the reasons of the primary judge.

41    In the circumstances, the merits of the proposed appeal ground do not have sufficient prospects of success to justify an extension of time to appeal.

42    The application is dismissed with costs.

Associate:

Dated:    12 September 2018