CAQ17 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judgment Date: 25 November 2019
• Neutral Citation: [2019] FCAFC 203
• Date: 25 November 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203

Appeal from:	CAQ17 & Ors v Minister for Immigration & Anor [2019] FCCA 1807
File number:	VID 792 of 2019
Judges:	MORTIMER, DERRINGTON AND STEWARD JJ
Date of judgment:	25 November 2019
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court dismissing application for judicial review of decision of Immigration Assessment Authority (IAA) – where IAA affirmed decision of delegate of the first respondent not to grant appellants protection visas – whether second appellant’s personal claim raised before IAA was “new information” for purposes of s 473DD of the Migration Act 1958 (Cth) – whether IAA adopted unduly narrow approach to meaning of “exceptional circumstances” in s 473DD – whether Authority must consider criteria in subss (b)(i) or (ii) of s 473DD in reaching satisfaction in relation to “exceptional circumstances” in subs (a) – appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 473DC, 473DD, Pt 7AA
Cases cited:	AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 Foster v Minister for Customs and Justice (2000) 200 CLR 442 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 163 ALD 38 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 61 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 411 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Date of hearing:	14 November 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	130
Counsel for the Appellants:	Mr E White with Mr A Aleksov
Solicitor for the Appellants:	Hall & Wilcox Lawyers
Counsel for the First Respondent:	Mr G T Johnson SC with Mr N D J Swan
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

		VID 792 of 2019
BETWEEN:	CAQ17 First Appellant ; CAR17 Second Appellant ; CAS17 Third Appellant ; CAT17 Fourth Appellant ; CAU17 Fifth Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGES:	MORTIMER, DERRINGTON AND STEWARD JJ
DATE OF ORDER:	25 november 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The first and second appellants pay the costs of the first respondent, to be fixed by way of a lump sum.

3. On or before 4 pm on 9 December 2019, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4. In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1. I have had the advantage of reading the reasons for judgment of Derrington and Steward JJ. I gratefully adopt their Honours’ summary of the background to the appeal, the parties’ arguments and the applicable legislative provisions. For the following reasons, I agree that the appeal should be dismissed.

The factual premise for the ground of appeal

2. There was a distinct lack of clarity in the evidence on the appeal about what was the correct factual context for the appellants’ arguments. This is illustrated, as one example, in the difference between the findings of the Immigration Assessment Authority (at [18] of its reasons) that the personal claims made by the second appellant were “new information”, and the finding of the Federal Circuit Court (at [46] of its reasons) that the claims were not new information.

3. There were also difficulties presented by the key submission on behalf of the appellants that, prior to the review before the Authority, the evidence did not disclose that the second appellant had made any claims to protection herself, and instead she had only made “derivative” claims, which I took to be another way of saying that she only relied on her husband’s claims to be owed protection by Australia.

4. It will be necessary to address what the evidence establishes was the situation before the delegate, and before the Authority, because as counsel for the appellants properly accepted, the factual premise in ground one is that the claims being made on behalf of the second appellant before the Authority had not been made by her before and therefore were “new information”.

5. It is on the basis of that factual premise that the appellants’ ground of appeal rests: namely that the Authority took an unduly narrow, and legally flawed, approach to its consideration of whether there were “exceptional circumstances” justifying it considering the new information as part of its review.

6. At [43]-[49] of its reasons the Federal Circuit Court found:

In respect of paragraph [18] of the Decision, the First Respondent raises a preliminary issue. The issue is that the Second Applicants’ claims or information are not new claims or new information. To make good this proposition, the First Respondent relies on the decision of the High Court in Plaintiff M174/2016, and in particular, the...