FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The delegate's reasoning as to why the appellant was excluded from merits review 3 The Act defines an excluded fast track review applicant in terms that include a person who, in the opinion of the Minister, 'has made a claim for protection in a country other than Australia that was refused by that country'. There are other categories of persons who are also included in the definition (see below). 4 In forming the relevant opinion in respect of the appellant, the delegate of the Minister noted that the exclusion applied: … regardless of the time that has elapsed since the protection claim assessment in another country or any differences in the protection claims or circumstances that were considered by the third country. 5 On that basis, the fact that a person has made an unsuccessful previous claim to protection in another country brings a person within the definition. It is not necessary to show that there was some connection or commonality as between the previous claim and the claim made in Australia.

Application for review in the Federal Circuit Court 6 The appellant brought an application in the Federal Circuit Court for judicial review of the refusal of his application for a temporary protection visa. The application was prepared without legal assistance. It said: After coming out of France I have faced the same difficulties in Sri Lanka [and that's] the reason I again sought Asylum in Australia. I feel unfair that Australian Government considering that [F]rance rejecting my application as basis for being considered and excluded fast track applicant. 7 Before the primary judge, the appellant claimed, in effect, that the delegate was informed by an incorrect view of the law. It was thereby alleged that the delegate approached the statutory task with an incorrect understanding of what the Act required and, as a result, there was jurisdictional error. The application for review was unsuccessful and the appellant now brings an appeal.

Issues on the appeal 8 The appellant claims that the primary judge erred in not accepting his contention as to the proper construction of the relevant words in the statutory definition of 'excluded fast track review applicant'. He submits that on the proper construction of the Act, the words 'a claim for protection' used in the relevant category of exclusion mean a claim for protection that was based upon alleged facts that are materially the same as those relied upon as the basis for the claim subsequently made in Australia. The submission advanced for the appellant focusses upon the word 'claim' and seeks to read that word as meaning a claim of a particular kind, namely a claim based on materially the same facts as the subsequent claim. 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. The Minister maintains that the delegate applied the correct view of the Act. 9 The appeal raises six grounds, but they reduce to three issues. First, did the delegate apply the correct construction of the definition of 'excluded fast track review applicant'? Second, was there sufficient material before the delegate to conclude that the appellant had in fact made a claim for protection in France that had been refused? Third, if the delegate's approach to the definition was incorrect, was the error material to the formation of the opinion?

Issue 1: Proper construction of the definition of 'excluded fast track review applicant'

The definition and its statutory context 10 The definition of the term 'excluded fast track review applicant' is deployed in Part 7AA which provides for a limited review on the papers for certain applicants where their applications for protection have been refused. It provides for a de novo consideration of the merits in the manner described by Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [17]. 11 Part 7AA was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth). The Explanatory Memorandum to the Bill states that the limited review mechanism was to support measures which 'clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia's protection obligations by the Department of Immigration and Border Protection'. 12 The whole of the relevant definition set out in s 5 is as follows: excluded fast track review applicant means a fast track applicant: (a) who, in the opinion of the Minister: (i) is covered by section 91C or 91N; or (ii) has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or (iii) has made a claim for protection in a country other than Australia that was refused by that country; or (iv) has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or (vi) without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or (aa) who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim: (i) has no plausible or credible basis; or (ii) if the claim is based on conditions, events or circumstances in a particular country - is not able to be substantiated by any objective evidence; or (iii) is made for the sole purpose of delaying or frustrating the fast track applicant's removal from Australia; or (b) who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(a). 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'. 14 However, the definition does operate together with the definition of 'fast track review applicant' which is defined to mean a 'fast track applicant who is not an excluded fast track review applicant'. Then, the term 'fast track applicant' is defined to mean: (a) a person: (i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and (ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and (iii) who has made a valid application for a protection visa in accordance with the determination; or (b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b). 15 Therefore, the definition of excluded fast track review applicant defines the categories of persons who are excluded from the categories defined in the term fast track applicant. Importantly, in order to fall within the definition of fast track applicant a person must have made a valid application for a protection visa in response to an invitation to do so or be included in a class of persons specified by legislative instrument. 16 It follows that the categories of excluded persons are to be understood in a context where the exclusion applies to a category of persons who have made an application for protection in Australia. 17 In the context of that group of definitions, if it was the case that the type of 'claim for protection' that brought a person within the exclusion was required to be a claim that had some type of connection with the application that made a person a fast track applicant (whether as to its factual basis or otherwise) then it would be expected that the excluded category would have been so expressed.

The Explanatory Memorandum 18 The purpose of introducing a definition of excluded fast track review applicant was described in the Explanatory Memorandum in the following terms (para 712): The intention is to exclude fast track decisions from merits review for those fast track applicants who, after an assessment of their protection claims, are determined to have put forward disingenuous information in support of their application or have access to protection elsewhere. This measure is also aimed at discouraging the making of non-genuine, unmeritorious claims for protection as a means of delaying an applicant's departure from Australia. It is the Government's position that such cases warrant being channelled towards a direct immigration outcome rather than access merits review in order to delay the finalisation of their cases and prolong their stay in Australia. 19 Then, as to para (a)(iii) of the definition, the Explanatory Memorandum stated (para 718): This provision 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. 20 These descriptions manifest a purpose that a person who has 'received a further assessment' (emphasis added) of asylum claims that have been assessed and refused in a third country should be excluded from further review of the merits of the claims. The reference to 'their asylum claims' in para 718 indicates a concern with instances where the same claims are assessed and refused in a third country and then also assessed and refused in Australia. 21 However, the Minister maintains that even if the assessment in Australia is in respect of different or new claims when compared to the claims that have been refused in the third country, the language used in para (a)(iii) of the definition excludes the applicant from seeking merits review under the fast track process. The Minister does so based upon the language used in the provision and the significance of the phrase 'made a claim for protection' as used in para (a)(iii), as well as (a)(ii) and (a)(iv). The Minister points to the fact that there are no words that might be said to reflect the use of the word 'further' in the Memorandum. In effect, it is submitted that there is no foothold in the wording used to define the categories to suggest that an applicant is excluded from the fast track review only if there is 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. There is simply no language to invite a comparison of that kind. Therefore, so it is submitted, para (a)(iii) applies if a claim for protection in a third country was refused by that country irrespective of the nature of that claim or the facts on which it was based.

Relevant principles 22 In construing a statute, the task is to ascertain the contextual meaning of the words used: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]. The application of the rules of statutory interpretation will properly involve the identification of a statutory purpose from extrinsic materials, recognising that it must be a purpose that 'resides' in the 'text and structure' of the legislation: Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573 at [44]. Care must be taken to ensure that the purpose identified is specific enough to be used to resolve the ambiguity: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529. It is not for the Court to conjure a purpose that is more specific than the context discloses and then use that purpose to construe the legislation: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [26]; and Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 at [21]. Context should not be used to displace the clear meaning of the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]. Whilst the process of contextual construction may lead a Court to read a statutory provision as if it contained additional words or omitted words, it cannot fill gaps or make an insertion that is too much at variance with the language used even in the name of advancing an identified legislative purpose: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [38]. 23 Putting these matters together, significance must be given to the ordinary or grammatical meaning of a legislative provision in the sense that there must be a reasoned basis to depart from that ordinary meaning which is both afforded and confined by a consideration of context: SZTAL at [14], [38].

Application of principles 24 In this case, in order to make the provision read in a manner that would confine the excluded category to instances where there was some commonality (whether as to the factual basis of the protection claims or the nature of harm from which the applicant seeks to be protected) between the past claim and the claim made in Australia there would need to be considerable adjustment to the language. It is not implicit in language referring only to the earlier claim for protection that it says something about the relationship with the character of the claim made in Australia. It would be necessary to introduce significant additional wording in order to refer to the claim for protection that has been assessed and refused in Australia and thereby qualify para (a)(iii) by reference to a comparison between the two claims. 25 There are many possibilities as to the type of connection that might be required between a past failed application in another country and a subsequent application in Australia that is also unsuccessful. The appellant posits that the two applications must be based on materially the same facts and the exclusion does not apply if it is based upon new facts that have arisen since the refusal of the claim to protection in another county. However, language of that kind would mean that further facts of the same kind as those found to be an insufficient foundation for a claim would be sufficient even where, in substance, they raise the same basis for a claim. If all that was required was some additional event that occurred after the claim was refused then the exclusion would barely have any field of operation. If the required connection was as to the reason for the fear of harm then issues would arise as to how similar the claims needed to be. Further, questions may arise concerning what is to occur where the reason for the harm, as alleged to be the basis for the claim in Australia, extend back to before the earlier claim but that reason was not raised in support of the earlier claim. There would also be issues as to how to treat an instance where a prior claim was rejected on credibility grounds. In short, there are many issues that would be raised by seeking to express the nature and extent of a connection between the two claims that determined whether the exclusion was to apply. Put another way, even assuming that a general purpose is manifest by the Explanatory Memorandum that the exclusion only applies if the claim in Australia is a 'further' claim of the same kind as the earlier unsuccessful claim, any such purpose is not stated with sufficient precision to indicate the language that might be added to give effect to that purpose. 26 Indeed, the argument for the appellant did not suggest any words that might be added. Rather, it articulated the result that it was submitted ought to have been expressed in para (a)(iii) without assuming the burden of stating how that outcome might be achieved by the application of principles of statutory construction. This is no mere technicality. The established rules of construction are an important expression of the constitutional relationship between the arms of government and ensure that the Courts give effect in an objective way to the manifestation of the intention of the legislature through the particular words used: Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [28]. 27 The argument for the appellant focussed upon the word 'claim'. It was said that the word claim could be construed to mean claim based on the same material facts as the claim made in Australia. However, it is necessary to consider the compendious phrase used to express the exclusion. It operated by reference to the making of a claim to protection in a country other than Australia that was refused. The context makes plain that it is the past act of making that claim, being a prior claim to protection in another country, that is the basis for the category of exclusion expressed in para (a)(iii). Likewise in para (a)(ii) and (a)(iv) the nature of the claim being referred to is explained in terms that focus on the act of making the past claim. There being no reference in these provisions to the subsequent claim it is difficult to see how provisions that describe the nature of the past claim as the basis for the exclusion may be read as incorporating something about the subsequent claim. 28 Nor does the manner in which the definition of excluded fast track review applicant is deployed in the substantive provisions assist. As we have observed, it operates as a qualification to the definition of fast track applicant. The defined term 'fast track review applicant' is defined to mean 'a fast track applicant who is not an excluded fast track review applicant'. The fast track review provisions of Part 7AA apply to decisions made in respect of fast track review applicants: s 473BB and s 473CA. There is no manifestation of any purpose concerning the extent of the exclusion effected by the definition. 29 Further, even in the case of para (a)(ii) of the definition of excluded fast track review applicant where there are additional words to describe the nature of the earlier application, there is no expression of a requirement for a particular link to the subsequent application that has been refused. The exclusion operates simply by reference to the nature of the first claim in Australia that was refused or withdrawn. The language invites no comparison with the nature or extent of the subsequent claim. 30 It may be accepted that a particular normative perspective might question the logic of excluding an applicant from the fast track merits review process simply because the applicant has, at some time in the past, made a claim for protection of the kind described in para (a)(ii), (iii) or (iv). The fact that a person has at some prior time in their life made an unrelated claim of an entirely different kind for protection from a very different kind of harm may be viewed as not presenting a compelling basis for treating the application of that person in a different manner, when it comes to merits review, than another person making the same claim. The claim may have been made many years before on the basis of entirely different circumstances. In such an instance, the fact of the earlier claim provides no necessary foundation for concluding that there is 'forum shopping' or some other lack of merit in the claim. 31 However, it might be said that a provision which views with circumspection all those who have made previous unsuccessful claims irrespective of whether they are connected to their current claims and does not extend to them a limited merits review for that reason is within the broad purpose stated in the Explanatory Memorandum. The provision might be characterised by some as harsh or extreme in its consequences, but it would remain an exception that might be justified by the stated purpose. Therefore, contrary to the submission advanced for the appellant, the operation contended for by the Minister does not result in an outcome that might be described as illogical or absurd such that it is plainly inconsistent with a manifest purpose that might be given effect by reading in words to the definition (assuming, contrary to the view we have already expressed, that such words might be formulated in accordance with the proper application of principles of construction). 32 Finally, it is to be noted that the evident intention of the protection provisions in the Act as being to give effect to international treaty obligations does not point to a different conclusion. It may be accepted that where there is ambiguity, a construction which accords with the obligations of Australia under an international treaty should be favoured, at least where there is a basis to conclude that the law was intended to give effect to those obligations: Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 38; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287 (Mason CJ and Deane J). Further, the use of the same words as are to be found in the international convention or treaty may manifest an intention that within the domestic legislative instrument the words are to be given the same acquired meaning as they have been understood to hold when used in the international instrument: Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 265. 33 However, this is not a case of ambiguity. Further, the question posed by the present appeal does not concern the criteria to be established for obtaining a protection visa. It may be accepted that the terms of the protection provisions in the Act were introduced for the express purpose of conforming to the requirements of the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees: see SZTAL at [1] (Kiefel, Nettle and Gordon JJ), [67]-[71] (Edelman J). However, the exclusion of some applicants from the merits review process does not deprive them of the ability to seek refuge of the kind provided for by the Act. Nor could it deprive an unsuccessful applicant of the right to seek review for jurisdictional error in accordance with the constitutional writ jurisdiction. Indeed, the primary judge in this case considered whether any such error had been demonstrated and found no error. That aspect of the decision is not challenged on appeal. The appeal is confined to the aspect of the delegate's decision which involved the formation of the opinion that the appellant was an excluded applicant.

Conclusion as to issue 1 34 It follows that the statutory construction contended for by the Minister (being that adopted by the delegate) is the correct construction of the words used. Therefore, it is not the case that the opinion of the delegate was formed on the basis of a misunderstanding of the nature of the opinion to be formed.

Issue 2: Sufficiency of the material before the delegate 35 The delegate found that the appellant was excluded on the basis of a statement in his visa application that he was refused protection in France and a confirmation in his interview 'that he was deported from France to Sri Lanka following his unsuccessful application for asylum'. 36 It was claimed that these findings were an insufficient foundation upon which to conclude that the appellant had made a claim for protection in France. It was submitted that the delegate needed further information about the nature of the claim to protection before it could undertake an assessment as to whether the appellant was an excluded applicant. 37 The reference to a claim for protection, in context, must mean a claim of a kind that seeks protection from harm that would be the consequence of refoulement. This is evident from the operation of the definition as an exclusion from fast track merits review under Part 7AA as well as the terms in which para (a)(ii) and (a)(iv) of the definition are expressed. 38 The statement in the visa application to which the delegate referred required the appellant to answer two questions. First, '[h]ave you ever been excluded, asked to leave, deported or removed from any country', to which the appellant answered yes and gave the details of the country as France and described the circumstances as 'failed asylum seeker'. The second question was '[h]ave you ever applied for refugee status or protection in any country other than Australia' to which the appellant answered yes and gave the details of the country as France and the outcome of the application as 'refused'. 39 The materials to which the delegate referred made plain that the appellant had applied for protection on the basis of a claim that he was a refugee and that the application had been refused. The material was a sufficient foundation, in the absence of any other material presented by the appellant, for the delegate to form the opinion that the appellant fell within the language of para (a)(iii) of the statutory definition of an excluded applicant. It was not necessary for the delegate to understand the particular process that had been followed in France when the appellant described himself as a failed asylum seeker whose application had been refused. Having regard to the conclusion we have reached as to the proper construction of the exclusion, those facts were sufficient to provide a proper basis for the opinion formed by the delegate. 40 We note the concession properly made by counsel for the Minister that the statement made by the appellant in his application for review in the Federal Circuit Court was not a matter that might be called in aid to support the reasoning of the delegate. The fact that the appellant had said before that Court that he was suffering the same difficulties in Sri Lanka after his deportation from France was not a matter that had been before the delegate. Therefore, contrary to the finding of the primary judge, it could not be a basis upon which the formation of the opinion of the delegate might be upheld. Nevertheless, for reasons we have given, the material relied upon by the delegate for the opinion formed was a sufficient foundation for the opinion. 41 It follows that there is no merit in the appeal grounds that relied upon the delegate's approach to forming the requisite opinion.

Issue 3: Materiality 42 Had the appellant's argument as to the proper construction of para (a)(iii) of the relevant definition been accepted then the delegate would have formed the requisite opinion based upon a fundamental misunderstanding of nature of the opinion to be formed. Given that the formation of that opinion is entrusted to the Minister and, on the appellant's argument, a very different opinion would have been required to be formed by some form of comparison between the nature of the earlier unsuccessful application and the present application, it is difficult to see how an error of the kind contended for would not have been material. However, given the view that we have reached on Issues 1 and 2 it is not necessary to form a final view on the question of materiality.

Conclusion and costs 43 The parties have agreed that the successful party in the appeal would be entitled to costs fixed in the amount of $7,241.00. There should be orders accordingly. For the above reasons, the appeal should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Steward, Colvin and Abraham.