Federal Court of Australia

EDG16 v Minister for Immigration and Citizenship [2025] FCA 913

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to “Minister for Immigration and Citizenship”.

2.    The amended notice of appeal filed on 18 October 2024 be dismissed.

3.    The appellant pay the costs of the respondent, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from a decision of a single Judge of the (then) Federal Circuit Court of Australia (FCCA) in EDG16 v Minister for Immigration and Border Protection [2021] FCCA 650. On 1 April 2021, the FCCA dismissed the appellant’s application for judicial review of a decision of a delegate of the respondent (Minister) made on 12 December 2016. In that decision the Minister refused to grant the appellant a Safe Haven Enterprise (Class XE) (Subclass 790) visa and also determined that the appellant was an “excluded fast track review applicant” within the meaning of s 5(1) and Part 7AA of the Migration Act 1958 (Cth).

2    In these proceedings, the appellant relied on an Amended Notice of Appeal filed on 18 October 2024. The appellant pleaded one ground of appeal, namely:

The Lower Court erred when it found the Applicant is an excluded Fast Track Review Applicant in s 5 of the Act.

3    This ground was extensively particularised, and I shall return to the ground and the particulars later in these reasons.

Background

4    The appellant is a citizen of Sri Lanka, having been born there in March 1988. The appellant first arrived in Australia on 17 September 2012 as an unauthorised maritime arrival. On 13 December 2015, the appellant applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

5    In support of his visa application, the appellant claimed, inter alia, the following:

(a)    In 2007, the appellant was attending high school in Jaffna and joined the union that represented the school with the LTTE. The LTTE asked the appellant to give them names of certain students. The appellant became aware that other students performing a similar role had been kidnapped by the Sri Lankan Army.

(b)    Members of the Army came to the appellant’s area and asked to speak with him. The appellant fled to Vavuniya, discovered it was not safe there, and subsequently fled to Malaysia.

(c)    The appellant then travelled to Norway. In 2010 he applied for protection in Norway, however his visa application was refused in 2012. The appellant was deported back to Sri Lanka.

(d)    Upon his return to Sri Lanka, the appellant was interrogated and beaten by the CID. He was released after paying a bribe. While the appellant was in Colombo, two CID officers went to his house in Jaffna and questioned his mother. The CID returned a second time, at which point the appellant decided to leave Sri Lanka for Australia.

(e)    The appellant cannot return to Sri Lanka because he will be further interrogated and harmed.

6    On 23 August 2016, the Department of Immigration and Border Protection wrote to the appellant and invited him to comment on adverse information that the appellant had made a claim for protection in Norway in 2010 which was refused. By letter dated 20 September 2016, the appellant’s migration agent acknowledged that the appellant had previously made a claim for protection in Norway which had been refused. This letter also indicated that the appellant’s claim for protection in Australia was based on what had happened to him since he was returned to Sri Lanka from Norway.

7    On 12 December 2016, the delegate refused the appellant’s visa application and determined that the appellant was an excluded fast track review applicant under s 5(1) of the Migration Act.

DECISION OF THE FCCA

8    On 28 December 2016, the appellant applied to the FCCA for review of the decision of the delegate. In those proceedings, the appellant pressed two grounds, namely:

    The delegate erred in finding the appellant was an excluded fast track review applicant under s 5(1) of the Migration Act; and

    The delegate erred in not accepting:

•    The appellant held membership or a position of leadership with the TSU;

•    The appellant had substantial personal dealing with a LTTE cadre named Crazy; and

•    The appellant would have been imputed as an affiliate or member of the LTTE.

9    The first ground pressed by the appellant in the FCCA proceedings is the same as pressed in the present matter. In considering the first ground pressed by the appellant in the FCCA, the primary Judge found:

10.    Consideration of this ground must begin with a review of the definition of ‘excluded fast track review applicant’ within section 5(1) of the Act. The definition relevantly provides that a person will be an ‘excluded fast track review applicant’ if the person is ‘a fast track applicant’ who ‘has made a claim for protection in a country other than Australia that was refused by that country’: see paragraph 5(1)(a)(iii) of the definition of ‘excluded fast track review applicant’.

11.    It is not in dispute that the Applicant had made a claim for protection previously in Norway and that his claim had been refused. For this reason, the Delegate held that the Applicant was an ‘excluded fast track review applicant’ within the meaning of section 5(1) of the Act.

12.    In FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 (‘FMM17’), a Full Court of the Federal Court of Australia considered the construction of the term ‘excluded fast track review applicant’ in section 5(1)(a)(iii) of the Act. The Full Court held that the section is to be interpreted as applying even where new claims for protection have arisen after the determination of refugee status in another country and even after the person has returned from the country of rejection to their own country before arriving in Australia: see paragraphs [24]-[34] of the decision in FMM17.

13.    The Applicant in the present matter accepted that FMM17 was binding on this Court but sought to distinguish it from the facts of this case. The Applicant submitted, in effect, that FMM17 was a decision that arose out of circumstances where the claims being raised in Australia by the appellant were the same as those that had been raised by the appellant in France. In the present matter, it was submitted that the Applicant had made a range of new claims (Court Book 144) and that the Court was therefore not required to follow FMM17.

14.    I do not accept the Applicant’s contention that the present matter is significantly different from the facts in FMM17. A review of the primary decision, FMM17 v Minister for Immigration [2019] FCCA 1500 discloses at paragraph [25] that the Applicant made a submission that ‘the applicant’s present claims for protection occurred after the applicant had been removed from France and that he should not be considered to be an “excluded fast track review applicant’. That is the same situation with which I am confronted.

15.    I am not persuaded that the present matter is distinguishable from FMM17. In my view I am required to follow FMM17. Given that the Applicant has previously made a claim for protection in Norway that has been refused, and given those claims overlap with claims he advances before me, the Delegate did not fall into error in holding that the Applicant was an ‘excluded fast track review applicant’ as defined in section 5(1) of the Act. This ground of review should therefore be dismissed.

10    The FCCA also dismissed the second ground of review pressed by the appellant. In that ground the appellant asserted unreasonableness and a failure by the delegate to engage in an active intellectual process. No equivalent ground of appeal was the subject of the present proceedings.

11    The appellant’s application in the FCCA was dismissed on 1 April 2021.

NOTICE OF APPEAL

12    The appellant filed a notice of appeal on 28 April 2021, and an amended notice of appeal on 18 October 2024. In full, the ground on which the appellant relied is as follows:

GROUND 1: The Lower Court erred when it found the Applicant is an excluded Fast Track Review Applicant in S 5 of the Act.

Particulars

i.    [15]

ii.    S 5 (1)(a)(iii) defines 'excluded fast track review applicant' as meaning inter alia:

"a fast track applicant (a) who in the opinion of the Minister .... iii has made a claim for protection in a country other than Australia that was refused by that country... ";

iii.    The Applicant had made a claim for a protection visa [AB13];

iv.    The claims made by the Applicant to the Australian authorities in 2015 were substantially different to the claims made by the Applicant in Norway in 2010 [AB54]-[AB57], [AB61 ]-[70].

v.    The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy caseload) Bill 2014 'Explanatory Memorandum' assists the interpretation of S 5(1) (a)(iii). It states inter alia at paragraph 718: "captures those fast track applicants who have had their asylum claims assessed and refused in a third country and have now received a further assessment and refusal under Australia's protection visa framework. It is the Government's position that persons who have had the benefit of accessing protection determination procedures both overseas and in Australia should be excluded from further 'forum shopping' where they have again had their application refused because merits review will unnecessarily delay the finalisation of their cases";

vi.    FMM17 V MINISTER FOR IMMIGRATION (2020) FCAFC 20 made findings which were simply in respect of an Applicant whose claims for asylum made in Australia were the same as/ similar to claims previously made in another country.

vii.     The Lower Court at [15] accepted the decision of FMM17 V MINISTER FOR IMMIGRATION (2020) FCAFC 20 as binding upon the Lower Court which as obiter was not and which was contrary to the Explanatory Memorandum.

viii.     The Lower Court accordingly erred by adopting the decision in FMM17 V MINISTER FOR IMMIGRATION (2020) FCAFC 20, in not properly finding the Explanatory Memorandum, the context, mischief or general purpose and policy of the Act and S. 5 (1)(a)(iii), meant the Applicant is not an excluded fast track review applicant.

Accordingly, the Lower Court erred when it it found the Applicant is an excluded Fast Track Review Applicant in S 5 of the Act, in doing so when it misapplied or misunderstood the relevant applicable legislation, and when it considered the Court was bound to follow the decision in FMM17, and so erred at law in dismissing the Appellant's Review Application.

(errors and emphasis in original)

Submissions of the Parties

Submissions of the Appellant

13    In summary the appellant submitted:

    When the appellant applied for refugee status in Norway, the facts raised at the time were completely different to those when he applied for protection in Australia. Those differences meant that the claim for protection in Australia amounted to a new claim; separate and distinct from that made in Norway. The key differences were the following facts, which were the basis of the claim in Australia:

•    The appellant was investigated by the CID because he was suspected to have been involved with the LTTE.

•    The appellant was assaulted and interrogated by the CID.

•    The appellant was threatened to be sent to the fourth floor, which meant that he would have been tortured or killed.

•    The appellant had to pay a bribe to be released by the CID.

•    The CID visited the appellant’s family home in Jaffna on at least two occasions and interrogated his mother about his past involvement in school organisations and activities.

•    The appellant went into hiding out of fear of being arrested and taken to the fourth floor.

    The purpose or object, spirit, and intention of s 5(1)(a)(iii), which defines “excluded fast track applicant”, is meant to apply to claims which are the same or substantially the same. It does not apply to claims which are not the same or substantially the same. Section 15AB of the Acts Interpretation Act 1901 (Cth) allows the use of extrinsic material in the interpretation of the Migration Act. As such, the following material should be used to assist in the interpretation of s 5(1)(a)(iii) of the Migration Act:

•    The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy caseload) Bill 2014 (Cth). Relevantly the appellant submitted:

The Explanatory Memorandum makes it clear that the ‘further assessment’ relates to the earlier refused assessment, and that the ‘claims’ refused by the third country are the same claims as the claims being subject to a ‘further assessment’ in Australia. Otherwise, the interpretation is unintelligible. To speak of a ‘further assessment’ of something which is different from an earlier assessment, is meaningless.

Further, the reference to ‘forum shopping’ can only be a reference to seeking a forum which would give the most satisfactory result in respect of the same or similar claims. ‘Forum shopping’ is a meaningless concept when the subject matter (ie., claims) is substantially different and extends over a period of years.

•    The Procedures Advice Manual, which relevantly provides:

The Department’s policy position is that applicants will satisfy this aspect of the excluded fast track review applicant definition only if they have had their protection claims assessed and refused in a third country that is a party to the 1951 Convention relating to the Status of Refugees (Refugee Convention) and/or its 1967 Protocol and that the person will satisfy the definition regardless of the time that may have passed or the difference in claims considered by the Third country.

•    In regard to that Manual, the appellant relevantly submitted:

The PAM is consistent with the purpose or object, spirit and intention of the Act, and the meaning of ‘excluded fast track review applicant’ in S 5 (1)(a)(iii), where the application to the third country, and the application to Australia being further assessed, are the same or substantially the same.

    FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 (FMM17) was incorrectly applied by the primary Judge. The Full Court in FMM17 made findings in respect of an appellant whose claims for asylum in Australia were the same as, or similar to, claims for asylum which were refused in another country. The present matter involves claims in Australia which are new and significantly different to earlier claims.

    The primary Judge did not properly apply the rules of statutory interpretation when interpreting the Migration Act because:

•    His Honour did not have regard for material capable of assisting with interpretation.

•    His Honour did not consider its context, purpose or object.

•    His Honour did not consider its legislative history.

    Because the primary Judge did not properly apply the rules of statutory interpretation, his Honour’s acceptance that the claim made by the appellant in Australia related to the previous claim in Norway was contrary to the intention of the legislation.

    The actions of the appellant could not sensibly amount to forum shopping because the claim for protection in Australia was substantially different from the claim made in Norway.

Submissions of the Respondent

14    In summary, the respondent submitted:

    The appellant met the definition of “excluded fast track applicant” as defined in s 5 of the Migration Act because he had made claims for protection in Norway which had been refused between 2010 and 2012.

    The submissions of the appellant were contrary to the Full Court’s decision in FMM17.

    Even if the appellant was making “significant new claims” in Australia, FMM17 makes it clear that it is the mere past act of making a claim for protection in another country which results in a person falling within the definition of excluded fast track applicant.

    Nothing in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2015 (Cth) indicates an interpretation of the definition of excluded fast track applicant other than that which the plain words require. Further, a policy document cannot affect the correct interpretation of the Migration Act.

    FMM17 makes plain that the definition of excluded fast track review applicant calls for no comparison between the nature or extent of the claims previously made in Norway and later made in Australia.

Consideration

15    Part 7AA of the Migration Act and the definition of “excluded fast track review applicant” in s 5(1) of the Migration Act were repealed by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). It does not appear to be in dispute however that the relevant legislative provisions in the Migration Act to which I must direct my attention were those in force prior to those amendments, and that the appeal is to be determined in accordance with the law as it then stood.

16    At the material time s 5(1) of the Migration Act defined “excluded fast track review applicant”, in so far as is presently relevant, as follows:

excluded fast track review applicant means a fast track applicant:

(a) who, in the opinion of the Minister:

...

(iii) has made a claim for protection in a country other than Australia that was refused by that country...

17    The key issue in this appeal is whether the primary Judge erred in dismissing the appellant’s appeal on the basis of the decision of the Full Court in FMM17. In particular, the appellant contended that the primary Judge erred in failing to recognise that a visa applicant could only be an excluded fast track review applicant pursuant to the decision in FMM17 in circumstances where the visa applicant’s claims for asylum made in Australia were the same as or similar to claims previously made in another country.

18    A contention by an appellant in very similar terms was examined by Goodman J in ACM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1051 (ACM17). In that case his Honour relevantly observed:

17.    The essence of the appellant’s argument is that: (1) as a matter of statutory construction the “claim for protection made in a country other than Australia that was refused by that country” must be a claim for protection in the same, or substantially similar, terms to the claim for protection under consideration in Australia; and (2) as a matter of fact, in the present case the evidence does not establish that the protection claims made by the appellant in Germany and the United Kingdom were in the same or substantially similar terms to his claim for protection in Australia.

18.    The issue of statutory construction was considered by the Full Court in FMM17. In that case, FMM17 was refused a protection visa on the basis that he had made a previous claim for protection in France that had been refused. The Minister’s delegate applied paragraph (a)(iii) of the definition of “excluded fast track review applicant” in s 5(1) of the Act on the basis that it was sufficient that there had been a previous unsuccessful claim for protection, regardless of the degree of congruence, if any, between the previous claim for protection and the claim for protection under consideration. An application for judicial review of the delegate’s decision was dismissed by the (then) Federal Circuit Court of Australia.

19.    The Full Court on appeal considered whether, as a matter of statutory construction: (1) it was sufficient that a previous claim for protection had been made in another country and had been refused (as the Minister contended – see 154 ([4] and [8], final sentence); and 157 [21]); or (2) this was insufficient and it was also necessary that the claim for protection made in a country other than Australia have been based upon alleged facts that are materially the same as those relied upon as the basis of the claim for protection made in Australia (as FMM17 contended – see 154 [8]).

20.    The Full Court held the former construction was correct (at 157 [10] to 160 [34]). In doing so, the Full Court considered and rejected various arguments as to statutory construction which the appellant repeats on this appeal.

21.    The appellant in the present case does not contend that FMM17 was incorrectly decided. Instead, he seeks to distinguish it. The appellant submits that: (1) FMM17 involved a different factual scenario than the present case in that FMM17’s previous claim for protection made in France and FMM17’s application for protection in Australia were the same; and (2) thus the reasoning of the Full Court on the question of statutory construction did not form part of the ratio decidendi of that decision. That submission must be rejected, for the following reasons.

22.    First, the ratio decidendi of FMM17 is that the fact that a claim for protection was made in another country and refused is sufficient to engage the expression “... claim for protection made in a country other than Australia that was refused by that country” used in paragraph (a)(iii) of the definition of “excluded fast track review applicant” in s 5(1) of the Act. A corollary is that it is not necessary for the claim for protection made in a country other than Australia to have been based upon alleged facts that are materially the same as those relied upon as the basis of the claim for protection made in Australia.

23.    Secondly, that ratio decidendi, which involved a question of statutory construction, is not fact dependent.

24.    Thirdly, in any event, the reasons of the Full Court operate upon the basis that FMM17’s claims for protection in France and in Australia were different. So much is clear from FMM17 at 154 [8]: “The appellant says his claim for protection was based upon new matters that occurred after he returned to Sri Lanka from France and therefore he is not an excluded applicant”.

25.    Thus, there is no basis upon which to distinguish FMM17. The primary judge was correct to follow that decision.

(bold, underlining emphasis added)

19    I respectfully adopt the reasoning of Goodman J in ACM17. His Honour’s reasoning is equally applicable to address the submissions of the appellant in this case. I further note the specific finding of the Full Court in FMM17 that:

13.    It is to be noted that para (a) of the definition identifies three different categories of persons who have 'made a claim for protection'. The same form of words is used in each case to focus upon the nature of the claim previously made by the visa applicant. Significantly, it is solely the nature of that previous claim that is used to identify the category of excluded applicant. There is no language that invites some form of comparison with or connection to the application subsequently made in Australia. For example, the language used is not 'the same claim for protection' or 'a claim for protection based on the same facts as the claim made in Australia'.

(emphasis added)

20    The Full Court in FMM17 further concluded that there was no foothold in the wording used in the definition of excluded fast track review applicant to suggest that an applicant was excluded from the fast track review only if there was some form of commonality or connection between the earlier claim made in another country that was refused and the subsequent claim made in Australia and refused (at [21] and [34]).

21    Whether the claims made by the appellant to the Australian authorities in 2015 were substantially different to the claims he made in Norway in 2010 was irrelevant. Contrary to the submissions of the appellant, the language of the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy caseload) Bill 2014 (Cth) did not require the primary Judge to arrive at a different decision to that reached by his Honour below, or distinguish the decision of the Full Court in FMM17.

22    In terms of the decision of the Full Court in FMM17, the appellant was an excluded fast track review applicant, having previously made an application for protection in a country other than Australia that was refused by that country. No appellable error is apparent in the decision of the primary Judge.

23    The appeal should be dismissed with costs.

Associate:

Dated:    7 August 2025