COS16 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: MCKERRACHER J
• Judgment Date: 12 February 2020
• Neutral Citation: [2020] FCA 112
• Date: 12 February 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

COS16 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112

Appeal from:	COS16 v Minister For Immigration and Anor [2019] FCCA 1857
File number:	WAD 378 of 2019
Judge:	MCKERRACHER J
Date of judgment:	12 February 2020
Catchwords:	MIGRATION - appeal from the Federal Circuit Court – judicial review of a decision of the Immigration Assessment Authority – single unparticularised ground of review – impermissible merits review – findings open on the material – weighting of material a matter for the decision-maker
Cases cited:	AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095
Date of hearing:	6 February 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Appellant:	The Appellant appeared in person, with the assistance of an interpreter
Counsel for the First Respondent:	Mr PJ Hannan
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent submits to any order of the Court, save as to the question of costs

ORDERS

		WAD 378 of 2019
BETWEEN:	COS16 Appellant
AND:	MINSTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	12 FEBRUARY 2020

THE COURT ORDERS THAT:

1. The Minister's name be changed to ‘Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The appeal be dismissed.

3. The appellant pay the costs of the first respondent, fixed at $4,000.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1. In October 2012, the boat on which the appellant was travelling was intercepted by Australian officials. He was taken to Cocos Keeling Island. On 5 February 2016, the appellant lodged a Safe Haven Enterprise visa (SHEV) application. It was refused by a delegate of the Minister and the then Department of Immigration and Border Protection referred the application to the Immigration Assessment Authority for review. In August 2016, the Authority affirmed the delegate’s decision.

2. The appellant now appeals from an order of the Federal Circuit Court of Australia. In July 2019, that Court dismissed an application to review the Authority’s decision, affirming the decision of the delegate. Extensive and careful written reasons were published by the Federal Circuit Court: COS16 v Minister For Immigration and Anor [2019] FCCA 1857.

THE FEDERAL CIRCUIT COURT

3. An application for review was filed in September 2016 without grounds of review. The appellant filed a second affidavit in the nature of submissions on the ground of review.

4. In June 2018, the primary judge ordered that the appellant have leave to file an amended application and any affidavits within three weeks and have leave to file an outline of submissions by 7 August 2018, with the application to be heard on 30 August 2018.

5. A third affidavit was filed and, indeed, a fourth affidavit, which attached what was described as ‘merit review material’.

6. On 30 August 2018, the primary judge commenced hearing the application and received submissions from the Minister on a model litigant basis drawing to the attention of the primary judge two possible issues which had not been raised by the appellant’s materials. The first was an issue arising from the decision of AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 and the second was an issue described as the 2006 Mistreatment Issue which concerned the question of whether events from that year had been addressed.

7. After receipt of those submissions, the primary judge ordered, amongst other things, that the application be adjourned to a date to be fixed, that the Minister file submissions on those new matters and that the appellant have leave to file submissions in reply. The Minister filed an outline of submissions and the appellant subsequently engaged a solicitor who appeared on his behalf. An outline of submissions was filed and the solicitor appeared on the adjourned application.

8. Certain material was tendered at the hearing of the amended application by the solicitor in relation to the preparation and the content of the SHEV application. It was received by the Federal Circuit Court, even though parts of it were already in the Court Book.

9. As to the grounds of review, which the primary judge treated as being in issue, his Honour’s reasons (at [43] and [48]-[52]) are of note:

43. At that hearing, the Minister raised two further issues that had not been previously raised by the Minister and, again, were not raised in any of the [appellant’s] “grounds”. Those two issues were:

a) the impact of the decision of the Full Court of the Federal Court in AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 (“AQU17”) – in particular, how that decision relates to the [Authority’s] treatment of the e-mail dated 19 July 2016 sent by the [appellant] to the [Authority] (the “New Information Issue”); and

b) whether the [Authority] addressed an issue of alleged mistreatment of the [appellant] in 2006 by the Sri Lankan authorities mentioned in the reasons of the delegate (the “2006 Claim”).

…

48. The matter returned for further hearing on 29 May 2019. Mr Draper appeared for the [appellant]. Mr Hannan appeared for the Minister.

49. The Court has had regard to all of the materials filed. It notes that the affidavit materials, while not formally read, were before the Court. The Court also marked the Court Book as Exhibit 1.

50. In the course of the hearing, Mr Draper sought to tender what was described as “The Humanitarian Group Documents”. The Minister objected on the basis of relevance. The Court marked the documents as Exhibit 2, and caveated this by indicating that their tendering was subject to the Court determining their relevance. Notably, as Mr Hannan indicated, at least three pages of Exhibit 2 were included in the Court Book.

51. As indicated, the course of these proceeding has been protracted and somewhat unusual. In effect, the Court has before it a number of grounds as advanced by the [appellant] in his various affidavits and the two further issues identified by the Minister at the 30 August 2018 hearing.

52. Mr Draper [sic] submissions did not address any of the [appellant’s] affidavits or “grounds of review” as outlined above. Rather, they only addressed the two issues referenced at [43] above. Nor did Mr Draper address any of the [appellant’s] affidavits in his oral submissions to the Court – again, focusing only on the two issues discussed at [43] above. Despite this, given that the [appellant] was not legally represented for most of these proceedings, the Court will nonetheless address all of his “grounds of review” and the new issues raised by the Minister to ensure that the [appellant’s] concerns are properly addressed. In that regard, the Court notes that at no time did Mr Draper indicate at the 29 May 2019 hearing that the [appellant] had abandoned all previous grounds or submissions advanced.

10. After reserving, his Honour delivered extensive reasons for dismissing the application.

IN THIS COURT

11. The appellant filed a notice of appeal, which reads as follows:

The Primary Judge didn't adequately examine the evident that was placed...