Federal Court of Australia

DGT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 552

ORDERS

THE COURT ORDERS BY CONSENT THAT:

1.    The appellant be granted leave to file an amended notice of appeal in a form substantially similar to Annexure A to these orders.

2.    The appeal be allowed.

3.    The orders made by the Federal Circuit and Family Court of Australia (Division 2) on 29 November 2022 be set aside and, in lieu thereof, it be ordered that:

(a)    a writ of certiorari issue, removing into this court and quashing the decision of the second respondent dated 15 June 2017 in matter 1AA17/02149;

(b)    a writ of mandamus issue, requiring that the second respondent determine according to law the application that was the subject of that decision; and

(c)    the first respondent pay the appellant’s costs of the Federal Circuit and Family Court of Australia (Division 2) proceedings, fixed in the sum of $7,853.00.

4.    The first respondent pay the appellant’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (gpn-costs).

THE COURT NOTES THAT:

5.    The first respondent accepts on the basis of the more precise argument advanced by the appellant in support of ground four of the proposed amended notice of appeal and the submissions filed on 9 May 2023 (especially at [29]-[30]) that the appeal should be allowed on the basis that, in breach of s 473CB(1)(c) of the Migration Act 1958 (Cth) (the “Act”), the second respondent (the “Authority”) was not given all material that was available and relevant to the review that it was charged with undertaking. The relevant material that the Authority was not provided comprised of files pertaining to members of the appellant’s family, which are referred to at page 3 of the decision of the first respondent’s delegate dated 2 March 2017. The first respondent accepts that those documents were able and required to be, but were not, given to the Authority. The first respondent further accepts that the breach of s 473CB was material in circumstances where the Authority rejected that the appellant would face harm due to the appellant’s father’s run in with the Sepah as a taxi driver and the contents of the material in the protection files was relevant to determining the truth about that claim.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is from Iran. He arrived in Australia on 22 October 2012 as an unauthorised maritime arrival (within the meaning attributed to that term by s 5AA of the Migration Act 1958 (Cth) (the “Act”)). On 29 June 2016, he applied for a sub-class XD-785 temporary protection visa (“Visa Application”) under the Act. That application was refused by a delegate of the Minister for Immigration and Border Protection on 2 March 2017 (“Delegate’s Decision”).

2    The appellant is a member of a cohort of individuals that are subject to a process of “fast track review” under the Act. By virtue of that process, the Delegate’s Decision triggered an automatic referral to the Immigration Assessment Authority (“IAA”) for review subject to Pt 7AA of the Act. On 15 June 2017, the IAA affirmed the Delegate’s Decision (“IAA’s Decision”). By an amended application dated 25 January 2022, the appellant brought an application for judicial review of the IAA’s Decision. It was dismissed: DGT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 988 (Judge Ladhams; hereafter, the “Primary Judgment”).

3    The appellant now appeals the entirety of the Primary Judgment by notice dated 20 December 2022. In support of his appeal, the appellant made a number of submissions, and sought leave to rely on new grounds of appeal not argued below. For reasons that will soon become apparent, only one of those proposed grounds is here relevant. The appellant submits that the IAA’s Decision was the product of jurisdictional error because the IAA was not provided with all of the material with which the Act required that it be provided.

4    Section 473CB(1)(c) requires that, for the purposes of a fast track review under Pt 7AA of the Act:

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

…

(c)    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…

5    The first respondent concedes the error and the parties move the court to make orders by consent to reflect that concession. As is ordinarily the case, the parties have proposed a draft minute of orders by which the IAA’s Decision is to be set aside, the appellant’s application for review is to be remitted to the second respondent and costs are to be made payable to the appellant.

6    In VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921, Colvin J made the following relevant observations about the allowing of appeals by consent (at [3]-[5]):

Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed.

Further, in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision-maker or other repository by communicating the reasons for the grant of public law relief.

Finally, in many instances where public law relief is granted, the orders will affect the exercise of powers which have significance beyond the interests of the parties before the Court and for that reason the Court should make plain why it has granted relief.

7    I have read the materials germane to the appellant’s case, including the written submissions advanced on his behalf. Having done so, I am satisfied that the first respondent’s concession is appropriately made. The Secretary is compelled to provide the IAA with materials in his or her possession or control that are relevant to its review: the Act, s 473CB(1)(c). The Delegate’s Decision here made explicit reference to material relating to the appellant’s family members. That material was not provided to the IAA. The appellant submits and the first respondent concedes—and, with respect, I agree—that the Secretary could not reasonably have determined that those materials were not relevant.

8    A contravention of s 473CB(1)(c) of the Act may give rise to jurisdictional error on the part of the IAA where it can be shown to affect the review that is ultimately conducted: CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367, 375-376 [28] (Jagot J; with whom Reeves J agreed; Derrington J agreeing at 389-390 [82]-[84]). The first respondent’s error can properly be described as sufficiently material in the sense that, had the missing material been received and considered, it is possible that the IAA’s Decision might have been different.

9    It follows that the appropriate course is for the appeal to be allowed and for the review to be remitted to the IAA for redetermination according to law. The orders proposed by consent are appropriate and shall (with minor editing) be made.

Associate:

Dated:    30 May 2023

ANNEXURE A

The appellant appeals from the whole of the judgment of the Federal Circuit and Family Court of Australia given on 29 November 2022 at Melbourne.

Grounds of Appeal

1.    The Learned Primary Judge erred by not finding that the Authority acted unreasonably/failed to carry out jurisdiction by misconstruing evidence provided by the applicant.

2.    The Learned Primary Judge erred by not finding that the Authority acted unreasonably in failing to seek new information under s 473DC of the Migration Act 1958 (Cth) in the circumstances of the case.

3.    The Immigration Assessment Authority’s decision is affected by jurisdictional error because it failed to conduct a de novo review of the primary decision maker’s decision.

4.    The Immigration Assessment Authority’s decision is affected by jurisdictional error because the Secretary failed to refer the protection files of the applicant’s family members for review under s 473CB(1)(c) of the Migration Act 1958 (Cth).

Orders sought

1    An order that leave be granted to argue new grounds of appeal 3 and 4.

12    An order that the decision of the Minister’s delegate be quashed.

23    A writ of mandamus directed to the Minister’s delegate, requiring them to determine the applicant’s application according to law.

34    A declaration that the decision of the delegate was not made in accordance with law, by reason of the ground/s of this application and is void and is of no force or effect.

45    Costs.

56    Such further order or other relief that the court deems appropriate.