BTH17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BTH17 v Minister for Home Affairs [2019] FCA 1181

Appeal from:

BTH17 v Minister for Immigration & Anor [2018] FCCA

1334
File number(s): QUD 418 of 2018
Judge(s): GREENWOOD J
Date of judgment: 30 July 2019
Catchwords: MIGRATION – consideration of the disposition of the reserved costs arising out of orders made on 13 November 2018
Legislation: Migration Act 1958 (Cth) ss 5AA, 5
Cases cited:

Craig v South Australia (1995) 184 CLR 163

DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447

DBD16 v Minister for Immigration [2018] FCCA 1801

Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1

Minister for Immigration and Multicultural Affairs and Bhardwaj (2002) 209 CLR 597

Date of hearing: 13 November 2018
Date of last submissions: 13 November 2018
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 36
Counsel for the Applicant: Mr M Black
Solicitor for the Applicant: Stolar Law
Solicitor for the First Respondent:

Sparke Helmore


ORDERS

QUD 418 of 2018
BETWEEN:

BTH17

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

30 JULY 2019

THE COURT ORDERS THAT:

1.The first respondent pay the costs of the appellant of an incidental to the appeal to the Federal Court of Australia in proceeding QUD418/2018.

2.The first respondent pay the costs of the appellant of and incidental to the application to the Federal Circuit Court in proceeding BRG366/2017. 

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


REASONS FOR JUDGMENT

GREENWOOD J:

  1. This matter was heard on 13 November 2018.  On that date, I made orders in the following terms:

    1.The time for the filing of a notice of appeal from the whole of the judgment of the Federal Circuit Court of Australia is extended to 22 June 2018 and the draft notice of appeal attached to the application filed on 22 June 2018 is deemed to have been filed on that date.

    2.The Appellant is granted leave to rely on the amended notice of appeal annexed to the affidavit of Anthony Stolar filed on 29 October 2018.

    3.        The appeal be allowed.

    4.The Orders of the Federal Circuit Court of Australia made on 24 May 2018 be set aside and in lieu thereof the following declarations and orders be made:

    THE COURT DECLARES THAT:

    (a)The purported appointment, by notice published on 23 January 2002 in the Commonwealth of Australia Gazette No GN 3, of an area of waters within the Territory of Ashmore and Cartier Islands as a “proclaimed port” is invalid. 

    (b)The Applicant is not an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth).

    (c)The Applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and…

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Details
Case
[2019] FCA 1181
Decision Date

CaseChat Overview and Summary

The appellant, who arrived in Australia by boat on 1 October 2012, applied for a Safe Haven Enterprise visa on 26 February 2016. The first respondent, the Minister for Home Affairs, refused the visa application on 11 October 2016. The refusal was referred to the Immigration Assessment Authority, which affirmed the decision on 22 March 2017. The appellant challenged the decision in the Federal Circuit Court of Australia and subsequently appealed to the Federal Court of Australia. The appellant sought orders for costs in relation to the proceedings.

The legal issues in this case revolved around the assessment of the appellant's eligibility for a Safe Haven Enterprise visa under the Migration Act 1958 (Cth) and the determination of costs associated with the proceedings. The primary issue was whether the appellant had a well-founded fear of persecution or a real chance of significant harm if returned to Afghanistan.

The court found that the appellant did not have a well-founded fear of persecution or a real chance of significant harm upon return to Afghanistan. The court held that the appellant would not face a real risk of serious harm in Mazar-e-Sharif on the basis of his claims, nepotism, or discrimination. The court also considered the isolated incidents of violence in or near Mazar-e-Sharif and concluded that they did not indicate that the appellant would face a real chance of persecution. The court concluded that the IAA's decision was not unreasonable and that the appeal should be dismissed.

The court ordered that the first respondent pay the appellant's costs of and incidental to the appeal and the application to the Federal Circuit Court of Australia. The costs order made by the primary judge was set aside, and the first respondent was ordered to pay the appellant's costs of and incidental to the FCC proceeding. The orders were made pursuant to Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The first respondent pay the costs of the appellant of an incidental to the appeal to the Federal Court of Australia in proceeding QUD418/2018.

2. The first respondent pay the costs of the appellant of and incidental to the application to the Federal Circuit Court in proceeding BRG366/2017.

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

Background

Background to the litigation

As to Order 5, the first respondent is to pay the appellant’s costs of and incidental to the appeal. The costs order made by the primary judge is to be set aside and in its place the first respondent is to pay the applicant’s costs of and incidental to the Federal Circuit Court of Australia (“FCC”) proceeding. Those orders are to be made for the following reasons. Background The appellant arrived in Australia by boat on 1 October 2012. On 29 September 2015, the first respondent permitted the appellant to apply for either a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa (a “SHEV”). The appellant applied for a SHEV on 26 February 2016. On 11 October 2016, a delegate of the first respondent refused to grant the appellant a SHEV. On 18 October 2016, the first respondent referred the decision to the Immigration Assessment Authority (the “IAA”) pursuant to s 473CA of the Migration Act 1958 (Cth) (the “Act”). On 22 March 2017, the IAA affirmed the delegate’s decision. The IAA accepted that the appellant had been kidnapped in Afghanistan as an identifiable Hazara. It also accepted as plausible that he was not harmed and managed to escape. The IAA did not consider that these events indicated that the appellant had a well-founded fear or harm as a Shia Hazara in Mazar‑e‑Sharif, which was a city he could safely access by air. The IAA was not satisfied that isolated incidents of violence in or near Mazar‑e‑Sharif in 2011 and 2016 indicated that the appellant faced a real chance of persecution as a Shia Hazara upon return in the reasonable foreseeable future. The IAA accepted that the appellant may be subject to discrimination on return in relation to employment, as a consequence of nepotism. However, the IAA noted that Shia Hazaras formed a significant minority group in Mazar‑e‑Sharif and was not satisfied that as a consequence of nepotism or discrimination he would be denied the capacity to earn a livelihood or would be subject to economic hardship such that his capacity to exist or otherwise suffer treatment that may be considered serious harm as defined in s 5J of the Act. The IAA was not satisfied that returnees like the appellant, who had lived in Pakistan or worked overseas in countries such as Kuwait for a significant period of time, and in a western country, were targeted by insurgents or imputed with an adverse political opinion in Mazar‑e‑Sharif. It was also not satisfied that the appellant would face a real chance of serious harm on return as a Shia Hazara or as a returnee from the west who had lived most of his life in Kuwait or Pakistan. Accordingly, the IAA was not satisfied that the appellant had a well‑founded fear of persecution for the purposes of s 36(2)(a) of the Act. The IAA otherwise considered its anterior factual findings and found that the appellant would not face a real risk of significant harm in Mazar‑e‑Sharif on the basis of the claims advanced, or because of nepotism or discrimination.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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