Bma18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 37
•9 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BMA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 37
File number(s): SYG 1555 of 2020 Judgment of: JUDGE STREET Date of judgment: 9 September 2021 Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise (Class XC) Visa – where the first two applicants are minors – where a prior adverse decision had been made by the Authority regarding the parents’ protection claims – whether there is an estoppel or abuse of process by virtue of the previous proceedings that prevents the two minor applicants pursuing the current proceedings – where a litigation guardian order had not been made in prior proceedings involving the parents – no abuse of process – no estoppel by reason of the earlier determination in relation to the parents – whether the Authority failed to have a genuine intellectual engagement with the audio recording of the enhanced screening interview – jurisdictional error made out – writ of certiorari issued – writ of mandamus issued Legislation: Constitution, s 75(v)
Federal Circuit Court Rules 2001 (Cth), div 11.2; r 11.08
Migration Act 1958 (Cth), pt 7AA; s 477
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 9 September 2021 Place: Sydney Solicitor for the applicants: Mr D Taylor, Sydney West Legal and Migration Counsel for the first respondent: Mr G Johnson Solicitors for the first respondent: Clayton Utz ORDERS
SYG 1555 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BMA18
First Applicant
BLZ18
Second Applicant
BLU18
Third Applicant
Litigation Guardian for the first and second applicantsAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
9 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Leave is granted to the applicants to rely on the further amended application filed 25 July 2021.
2.A writ of certiorari is issued calling up the record of the second respondent, the Immigration Assessment Authority, and quashing the decision made on 23 February 2018, only as so far as it relates to the minors, being BMA18 and BLZ18.
3.A writ in the nature of mandamus is issued requiring the second respondent, the Immigration Assessment Authority, to determine the application for review in relation to the minors, being BMA18 and BLZ18, according to law.
4.The first respondent pay the applicant’s costs fixed in the amount of $15,000.00, to be paid within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction and Background
These proceedings were commenced on 26 June 2020 by two minors, being Sri Lankan citizens whose parents had earlier had protection claims advanced and determined before a delegate of the first respondent (“the delegate), and before the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Migration Act 1958 (Cth) (“the Act”), which affirmed the decision of the delegate to refuse to grant the parents a Safe Haven Enterprise (Class XC) Visa (“the Visa”).
The children were included in the application for the Visa as members of the family unit.
In the proceedings that have now been commenced there has been a litigation guardianship order made in respect of the father of the two children, for the purpose of the pursuit of the proceedings.
The Grounds
An extension of time was sought under s 477 of the Act in respect of the Grounds in the further amended application which are, relevantly, as follows:
Ground 1
1.The Authority’s statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act.
Particulars
a. The Secretary did not, at the time the delegate’s decision was referred to the Authority, consider or form a view on the relevance to the review of certain documents falling within the description of ‘other material’ in s 473CB(1)(c) then in the Secretary’s possession and control.
b. These documents included the audio recording of the enhanced screening interviews and case assessment & biodata interview (other than the written record for the applicants’ father and the senior case review from pages 245-259, apparently supplied by the applicants’ migration agent).
c. These documents were not before the delegate and were not part of the domain of documents considered by the Secretary at the time of referral of the delegate’s decision.
d. In the alternative, if the documents were part of the domain of materials before the delegate, they were not forwarded to the IAA.
e. In the event that contrary to the above, the enhanced screening interviews and case assessment & biodata interviews did form part of the review materials, the Authority failed to consider those materials as part of its mandatory review under s.473DB(1).
Ground 2
2.The Authority did not have before it, (or) failed to consider, or failed to give active intellectual consideration to claims and evidence provided by the applicants’ mother in the Case Assessment and Biodata Interviews and Enhanced Screening Procedure Interviews.
Particulars
i. The credibility findings of the IAA with respect to the visa applicant mother’s claims were affected by jurisdictional error in failure to listen to the audio of the ESP interview, or to consider her ESP and biodata interview records, whether caused by a breach of s.473CB, or failure to review the material if it was submitted to the Authority.
ii. The Authority failed to consider the claim made in the ESP interview that the authorities visited her home and abused and frightened her. [ESP p.14/16-17]
[Page 14]
Case officer: Okay, is there anything that happened to you personally, that’s why you’re coming here?
Interpreter: They came to my house a couple of times. [long pause]
[Page 16]
Case officer: You good? Case officer: Okay, did anyone ever harm you?
[Page 17]
Interpreter: They, what you call, frightened me, they abused me.iii. The Authority failed to take into consideration the emotional affect of the applicant in the ESP interview.
iv. The Authority failed to take into consideration the applicant mother’s evidence and/or corroboration of the claims concerning threats to kidnap the children.
The first respondent filed an application in a case contending that the proceedings were the subject of an estoppel order or an abuse of process. The Court, extended time on 21 April 2021 and fixed the matter for hearing today including the issue of whether the proceedings are an abuse of process or the subject of a type of estoppel.
Before the Court
Accordingly, there are two issues before the Court. Firstly, whether there is an estoppel or abuse of process that prevents the two children pursuing these proceedings. Secondly, if there is no such estoppel or abuse of process, whether the Authority has exceeded its statutory power in the conduct of the review.
Issue 1
Dealing first with the issue of the estoppel or abuse of process. The first respondent has provided helpful reference to a number of authorities, all concerned with the circumstances in which a party is precluded from raising an argument that, in the subsequent proceedings, it could reasonably have been relied upon in earlier proceedings, or in which a party is found to have engaged in an abuse of process when seeking to re-agitate the subject matter that has been concluded in prior proceedings between the parties.
The Federal Circuit Court Rules 2001 (Cth) (“the Rules”), being the applicable rules at the time, relevantly provided under r 11.08 the following:
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2)Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
The rule makes it clear that there is a need to have a litigation guardian in respect of any child. The question arises as to whether the rule is regarded as one of substance or procedure.
On its face, this Court finds that the making of a litigation guardianship order is a matter of substance. It is the formalisation by reason of which a child is able to be a litigant before the Court.
The naming of the children in the proceedings without a ligation guardian order does not make them a party to the proceedings. It is not until there has been an order under div 11.2 of the Rules, appointing a litigation guardian, that the children are properly joined as parties to the proceedings. It is not a procedural requirement but an essential and fundamental step to ensure a child is properly joined as a party. This essential step might be taken at any time up to the final determination of the matter. If however no such step has been taken before the final determination of the matter then the child has never been properly joined and is not a party to the proceedings.
The earlier proceedings heard in this Court were ones where there was clearly an opportunity for either the applicants, the respondents or the Court to address the want of a litigation guardianship order before the matter was finally determined. When the matter was taken on appeal in the Full Court of the Federal Court of Australia, that Court was exercising the appellate powers in respect of potential appellate error by this Court in determining whether or not there were grounds for the grant of a constitutional writ.
The proceedings being removed into the Full Court of the Federal Court on appeal meant that there was, again, an opportunity prior to final determination of the appeal by reason of which there could have been taken steps to cure the want of an appointment of a litigation guardian, even at that stage in the proceedings before the Full Court of the Federal Court.
Mr Johnson, counsel for the first respondent, does not seek to lay blame in relation to the want of the making of such an order. It is a fundamental part of the responsibility of any Court to be satisfied that it has jurisdiction in respect of the controversy between the parties that is sought to be brought before it. Where a minor is sought to be joined in that controversy, it is not merely a matter of procedural interest as to who are the parties, it is part of the Court’s duty to ensure it has jurisdiction over the parties and in this context that a litigation guardianship order has been made.
In the circumstances of the present case, the absence of such an order prior to the final determination of the matter by Court order means that the children were never properly before the Court as parties, whether their name was described in the originating process or the appellate process.
The reasoning upon which Mr Johnson relies in relation to an abuse of process is that the Court has identified the public interest in ensuring that the subject matter of controversies are not re-agitated by the parties once quelled by final Court orders. The subject matter of those controversies so quelled as between the parties is not one in which issues that could have been raised are likely to be allowed to be raised again. As the child applicants were never made parties to the proceedings by court order prior to the final determination there can be no abuse of process.
The Court does not accept that relief the subject of s 75(v) of the Constitution process that can be the subject of any estoppel be it Anshun or otherwise. That constitutional writ process is capable of being the subject of an alleged of abuse of process engaging the discretion of the Court that may rise to consequences of precluding the re-litigation of issues raised, or that could have been raised, between the same parties in fresh proceedings. The children were not such parties for want of guardianship orders. Accordingly there is no estoppel precluding the children bringing these proceedings.
The apparent difficulty that the first respondent’s case on this first issue is that the children were not parties to those proceedings that were finally quelled by Court order, because there was never a litigation guardian order made, and that was a substantive and fundamental requirement without which the minors were not before the Court as parties.
The fact that it could have readily been cured does not diminish the importance of the making of a litigation guardian order, which formalises the joinder of the minor to the proceedings as a party. The want of such an order in the present case, either at first instance before this Court, in the earlier determination of the application for a prerogative relief concerning the decision of the Authority, or in the Full Court of the Federal Court, means that the minors should not now be taken to be precluded by principles of abuse of process from agitating grounds upon which it might be said that there was an excess of statutory power by the Authority in the conduct of its review under pt 7AA of the Act. Further as a matter of discretion in respect of alleged abuse of process the failure to make such an order prior to the final determination of the proceedings means this Court would decline to dismiss the proceedings as an abuse of process.
Mr Johnson contended that, because the subject matter of the arguments in respect of the alleged excess of jurisdiction concern the claims of the parents of the minors, this makes the proceedings in the present case an abuse of process. The Court does not accept that the children, if not properly joined to the proceedings, should be precluded from agitating alleged excess of jurisdiction in respect of the Authority’s decision.
The Court does not accept that there has been an abuse of process by the bringing of these proceedings. The Court does not accept that the first respondent has established that these proceedings are an abuse of process, or in any way estopped by reason of the earlier determination in respect of the parents’ agitation of the decision of the Authority, made on 23 February 2018. Further as indicated as a matter of discretion the want of joinder by the making of a guardianship order in this case means the Court is not satisfied that the proceedings should be struck out as an abuse of process.
Issue 2
The Court turns to the second issue as to whether or not the Authority exceeded its statutory powers in the matter contended by Mr Taylor, the applicants’ representative, in the two grounds.
Evidence was adduced in relation to the material that was provided to the Authority. Insofar as relevant, the Court accepts the evidence of Ms Xiao that the audio recordings of the enhanced screening interview were provided by the secretary to the Authority. In those circumstances, given that finding, it is not one where Ground 1 could succeed.
However, Mr Taylor contended that the Authority failed to have a genuine intellectual engagement with the audio recording of the enhanced screening interview. In that regard, Mr Taylor took the Court to the material parts of a transcript of the audio recording that relevantly included a question put to the mother of the applicants:
“Okay. Did anyone ever harm you?”
Through an interpreter the mother of the applicants answered:
“They, what you call frighten me, they abuse me”.
No further question was asked about the nature of that abuse, nor whether it was verbal or physical.
Those screening interviews occurred on 13 May 2013. The mother of the applicants, who together with her husband, were found to be citizens of Sri Lanka, raised a claim of a sexual assault from people of the Karuna Group just prior to the parents and children departing Sri Lanka legally. In the statement provided on 10 September 2015, the mother explained that she had not talked about this before because she did not really like to talk about it. The mother said that it is all very fresh in her mind, but that:
“I also have trouble remembering details of events and when things happened”.
The mother of the applicants said that there was a male interpreter at the arrival interview, and that:
“I did not want to talk about the sexual assault”.
The mother of the applicants alleged that her husband, the father of the applicants, knows what happened to her. The mother of the applicants’ statement gave details in relation to an attempted rape by men from the Karuna Group when her husband, the father of the applicants, was not there.
The Authority, in considering the claims for the Visa under the refugee criteria and in relation to complementary protection, made reference to the claim raised in respect of sexual assault of the mother of the applicants. The Authority raised this in relation to the question of whether there was a real risk or real chance of significant harm or serious harm in the reasonably foreseeable future if the parents were returned to Sri Lanka.
There were adverse credibility findings in respect of certain parts of the claims advanced by the parents. However, relevantly, in relation to the sexual assault, the Authority reasoned that the mother of the applicants did not mention this claim until September 2015.
Mr Johnson contends that, in those circumstances, the content of the enhanced screening processing audio recording could not be said to be material, and the absence of an express reference to the same should not persuade the Court that there was not a genuine intellectual engagement with the whole of the material, including the audio recording. It was common ground that there was no express reference to the Authority having listened to the same.
Paragraph 77 of the Authority’s reasons refers to the explanation advanced in the mother of the applicant’s statement that she had a male interpreter. The Authority accepted that the descriptions of a sexual assault may be difficult. However, the Authority reasoned that it is difficult to believe that she has not even mentioned that she was assaulted or visited by the Karuna Group in 2012, particularly given that it occurred just prior to their departure from Sri Lanka.
Mr Taylor has properly drawn the Court’s attention to the materiality and the reasoning of the Authority of the reference to the absence of a mention of something less than sexual assault at an earlier time. There is then a reference in the Authority’s reasons to the mother of the applicants being asked if there are any other reasons why she left Sri Lanka, and the mother of the applicants confirmed that the extortion was the sole reason for their departure.
Mr Taylor took the Court to the written arrival interview, which squarely makes reference to the sole reason for their departure. It also is one in which there was reference to the father applicant’s 2004 abduction. The content of paragraph 77 of the Authority’s reasons comes from the irregular maritime arrival and induction interview, which is annexed to Mr Taylor’s affidavit at the page numbered 71 in the right-hand corner, being page 11 of the 20 page document. On that page, in relation to question 32, there was a statement by the mother of the applicants that is recorded:
“No. This is the sole reason”.
That statement, together with the reference of 2004, satisfies the Court that the content of the reasoning in paragraph 77 of the Authority’s decision has come from that written arrival record.
The reasoning of the Authority in relation to the credibility concerns in respect of the sexual assault referred to the inconsistencies in the mother of the applicants’ account, and also made reference to the father of the applicants’ statement as to where the attack took place. In the context of those creditability findings, the Authority reasoned that, referable to the extortion demands and threats, the father applicant would not leave the family behind and go to his mother’s home. It was in the context of that reasoning that the Authority concluded it did not accept the mother of the applicants’ claim that she was sexually assaulted, or that anyone came to their home in December 2012 demanding money or making threats.
In the transcript of the screening interview, a question was asked as to who else was living with the parents and the children. The mother of the applicants made reference to “and my mum”. That screening interview identified that the grandmother continued to reside at that home. Whilst the presence of the grandmother may or may not be something that advances or detracts from the credibility determination made by the Authority, the presence of the grandmother and taking that into account does not sit neatly with the reasoning in relation to the father effectively being found to have left the family behind.
No reference is made to the grandmother being in the house, consistent with the Authority not having a genuine intellectual engagement with the whole of the material, including the audio recording. There is a further reference in the enhanced screening process recording in relation to the father of the applicants where the question was advanced:
“What do you think they would do if you came back?”
The answer was given:
“They will – they will – they will take my wife.”
No further question was asked as to what or why. In the context of the claims advanced of an alleged sexual assault, even though it is correct that the sexual assault was not expressly mentioned, the audio recording is capable of being said to be material to the evaluation of the credit of the mother of the applicants’ claim as to allegedly having suffered a sexual assault. In that regard, the Court is also taking into account, that it is apparent from the transcript, that there were interpreter inaccuracies at the very start in terms of who the children were.
In that context, the response in respect of the question as to whether the mother of the applicants was ever harmed by anyone: “They abused me”, could be said to be corroborative of the mother of the applicants’ hesitancy in respect of the oblique mention to abuse, which is capable of being taken to be physical abuse and in respect of which no other question was asked. This information as accordingly material and could possibly give rise to a different credibility finding.
It is not for this Court to weigh and determine the credibility issues. It is, however, the case that the Court is satisfied that the audio recording in relation to the content and, in particular, the question at 226 to 227, was sufficiently material to have required express reference by the Authority, if it had taken the same into account by identifying that it had listened to the enhanced screening process recording.
On the evidence before the Court and given the focus by the Authority on the written arrival entry interview in determining the credibility of the mother of the applicants in respect of the sexual assault, the Court is satisfied that the Authority did not take into account the audio recording. That is because there is no reference to the answer given by the mother of the applicants in respect of the question as to whether she suffered harm, no reference to maternal grandmother being in the family home, and no reference as to what was meant by the father applicant in relation to the Karuna Group taking his wife.
The observations made in the audio recording, to which the Court has referred, were capable of supporting the credibility of the claims advanced by the mother of the applicants in respect of the sexual assault. Accordingly, the failure to take the same into account is one that the Court is satisfied is material and could have given rise to a different outcome in respect of the review application.
Accordingly, the Court is satisfied that the Authority failed to have a genuine intellectual engagement with the enhanced screening process recording. The Court is satisfied that the failure to do so was material and could have given rise to a different outcome in the determination of the review application. In those circumstances, the Court is satisfied that the jurisdictional error alleged in Ground 2 by Mr Taylor is made out.
Accordingly, the Court orders that a writ of certiorari is issued, calling up the record of the second respondent, the Immigration Assessment Authority, and quashing the decision made by it on 23 February 2018, only as so far as it relates to the minors, being BMA18 and BLZ18. The Court also orders that a writ in the nature of mandamus is issued requiring the second respondent, the Immigration Assessment Authority, to determine the application for review in relation to the minors, being BMA18 and BLZ18, according to law.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 9 September 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 14 October 2021
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