A “fast track applicant” presumed to be a “fast track review applicant”?

Federal Court. Is a "fast track applicant" a "fast track review applicant" unless and until the Minister forms the opinion that he/she is an "excluded fast track review applicant", with the consequence that, until and if that opinion is formed, a refusal to grant him/her a protection visa should be referred to the IAA even if the applicant, objectively, "has made a claim for protection in a country other than Australia that was refused by" that country or the UNHCR Office?

The Federal Court (FCA) said as follows:

5    The first and second appellants are respectively husband and wife. The third appellant is their adult son. They are arrived in Australia by boat on 1 May 2013. As such, they were “unauthorised maritime arrival[s]” within the meaning of s 5AA of the Act and were barred from making a valid application for a visa (see s 46A(1)). Sometime after their arrival, they were released into the community, presumably on temporary protection visas. On 29 August 2016, after the Minister lifted the bar (see s 46A(2)), the Minister’s Department invited the appellants to each apply for a SHEV.

6    While all of the appellants accepted the invitation, lodging their application on 24 September 2017, only the husband and sonindicated in Part B of the application form that they wished to advance protection claims. Each of them also submitted typed signed statements setting out their claims for protection. While the wife indicated in her separate Part C form that she wished to pursue her own claims for protection, she did not submit a statement of her own in support of such a claim ...

46    The appellants complain that the primary judge erred in not finding that the Authority failed to address “sufficiently cognisable independent claims” for protection made by the wife. The alleged error arises from the primary judge’s conclusion at [42]:

[T]he second applicant did not make a clearly articulated claim for protection. What she did was, through her agent, make an evidentiary assertion concerning contact with the Sri Lankan authorities while her husband was in Malaysia, which was intended to support and corroborate his claims. The claim as put was expressly considered and rejected by the Authority at [34] of its decision …

47    The appellants contended that the primary judge made a false distinction between a “clearly articulated claim” and an “evidentiary assertion”.

48    The question raised by this ground is whether the Authority failed to consider an unarticulated claim that “arose sufficiently from the material as to require a reasonably competent [decision maker] in the circumstances to appreciate its existence ...

51    Here, the wife’s independent claim to protection, which the Authority allegedly overlooked, was said to arise from the following material:

(1)    A statement made by the husband in his arrival interview as part of his response to the question “What do you think will happen to you if you return to your country of nationality (residence)?”, namely:

They threaten my wife saying if I am missing they will take my son. They smashed my house and beat my wife.

(2)    Statements made by the wife in her arrival interview in response to the question “Why did you leave your country of nationality (country of residence)?”, namely:

They started frequenting my house and threatening me about my husband. They sent him to Singapore and he was taken into custody and beaten again …

04/2010 they came to my house looking for my husband. Because he was not there they verbally abused me and kicked me. In 09/2010 they tried to take my son. They came to my house, put a gun on my head telling that if we take your son your husband has to come.

(3)    Notwithstanding the indication given in Part B of the SHEV application form, the fact that in the wife’s Part C form ticks were placed in the “yes” box underneath the following questions:

87.    Are you making your own claims for protection?

91.    Did you experience harm in that country (or countries)?

93.    Did you move, or try to move, to another part of that country (or countries) to seek safety?

94    Do you think you will be harmed or mistreated if you return to that country (or countries)?

(4)    When reasons or details were requested, the answer “please see attached” was given and in the son’s statement which was attached to his Part C form he had written:

My mother and I spent the next several months trying to avoid the authorities who started coming regularly to our home. Each time they came to our home, my mother would tell them I wasn’t there. The authorities ended up losing patience with my mother and threatened her…

The situation became so unsafe for my mother and I that we decided to leave before something happened to us.

(5)    The following passages in the submission to the delegate by the appellants’ migration agent (the collective submission), under a section describing the husband’s claims:

Around 1am early the next morning, a white van arrived at the front of [the husband’s] home and six people got out of the van. He recognised two of the men were the same men that stopped him the night before. Afraid for [his] life, [the husband] fled his home from the back yard before the men reached the front door.

[The] wife answered the door to the men and told them her husband was not at home. They pushed their way in and searched their home. They told his wife that they wanted him and when they found him that would kill him.

(6)    The following additional passages in the same section of the collective submission relating to the husband’s claims:

The Sri Lankan authorities began to take an interest in [my wife] and my family in Sri Lanka. Things had been relatively quiet until then. However, the CID had continued to visit the home after [the husband] left making enquiries about him for a time and had made threats to their son. When the situation in Malaysia became well known in Sri Lanka, the CID began to target [the] wife and son to the point where their lives were at risk and they had to leave and they joined [the husband] in Malaysia in May 2011.

They made arrangements with an agent to assist them to pass through the airport without being detected by the authorities.

After [the] wife and son joined him in Malaysia they continued to remain in the country unlawfully because they were too afraid to return to Sri Lanka. They had nowhere else to go and lived in fear of being arrested by the Malaysian authorities and deported back to Sri Lanka to face the authorities. [The husband] believes if that had happened, he and his family would have been imprisoned and tortured and the torture they would have received would have resulted in their deaths.

53    In her arrival interview, in answer to the question “Why did you leave your country of nationality?”, the wife answered: “The problem my husband faced”. The threats allegedly made to, and the assaults upon, her in 2010 were said to have been made because the authorities were after her husband, not her. She did not claim that she feared harm because she feared persecution in Sri Lanka because of any reason which would bring her within the scope of the definition of a “refugee”. She indicated, however, that the lives of all members of the family were at risk because of “[t]he times they came and tortured us in our house”.

54    But she said nothing about these matters in her visa application. Details of her claims were said to be contained in an attachmentto her Part C form. But there was no such attachment to her form. The accounts given by the husband and son indicated that, if there were a risk to the safety of the wife, it arose because each of them was a target of the authorities. Moreover, the collective submission provided to the Department identified and addressed protection claims by the husband and son but neither addressed nor identified any such claim by the wife.

Some of the questions to the FCA were as follows:

Question 1: If a party appeals to the FCA from a judicial review decision of the Federal Circuit and Family Court and raises a new ground of judicial review on appeal, is the respondent by definition prejudiced in that, if the FCA gives leave to raise the new ground and such a ground is successful, the respondent will have no right of appeal to the High Court?

Question 2: Does the fact that the Minister referred the decision of the delegate to refuse to grant a protection visa to the Immigration Assessment Authority for review indicate that he had not formed the opinion that one of the appellants was an "excluded fast track review applicant"?

Question 3: Is a "fast track applicant" a "fast track review applicant" unless and until the Minister forms the opinion that he/she is an "excluded fast track review applicant", with the consequence that, until and if that opinion is formed, a refusal to grant him/her a protection visa should be referred to the IAA even if the applicant, objectively, "has made a claim for protection in a country other than Australia that was refused by" that country or the UNHCR Office?

Question 4: "Assuming leave were granted, the appellants’ argument prevails, and the Authority’s decision is quashed for want of jurisdiction, the delegate’s decision would remain in force", would this lead to futility if the FCA were to quash the IAA's decision?

Question 5: If the answer to Question 4 is 'yes', should that answer vary by reason that the appellants could then seek judicial review of the delegate’s decision?

Question 6: Did the wife's own claim for protection clearly emerge from the materials before the IAA?

Question 7: In the context of a claim for protection, was the IAA "required to refer to every piece of evidence before it and every contention made"?

Question 8: In circumstances where, "whatever claims the wife may be taken to have made were closely linked to those made by her husband and son", in rejecting the latter claims, the Authority also rejected the factual premise underlying hers, can it be said that any failure by the IAA to deal with a claim for protection from the wife which clearly emerge from the materials was immaterial to its decision?

Question 9: In circumstances where, "whatever claims the wife may be taken to have made were closely linked to those made by her husband and son", in rejecting the latter claims, the Authority also rejected the factual premise underlying hers, can it be said that any failure by the IAA to deal with a claim for protection from the wife which clearly emerge from the materials was immaterial to its decision?

Question 10: Section s 473DD of the Migration Act 1958 (Cth) prohibited the IAA from considering information not considered by the delegate unless, among other things, "there are exceptional circumstances to justify considering the new information". In order to establish that the IAA's discretion under s 473DC(3) to invite the wife to provide new information was exercised in a legally unreasonable way, should the Appellants have identified in the court below or in the FCA "what the wife would have told the Authority had she have been given the opportunity or what, if any, exceptional circumstances existed so as to justify its consideration by the Authority"?

Question 11: In circumstances where "none of the appellants asked the Authority to receive new evidence or make any further submissions, despite having been afforded the opportunity to do so", is it difficult see how the IAA's exercise of the discretion under s 473DC(3) could be considered unreasonable?

The FCA answered those questions as follows:

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