BTT16 v Minister for Home Affairs - [2019] FCA 251

FEDERAL COURT OF AUSTRALIA
BTT16 v Minister for Home Affairs [2019] FCA 251

Appeal from: BTT16 & Ors v Minister for Immigration &Anor
[2018] FCCA 1125

File number: WAD 131 of 2018

Judge: STEWARD J

Date of judgment: 28 February 2019

Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether primary judge erred in dismissing an application for judicial review of a decision of the Immigration Assessment Authority affirming refusal of temporary protection visa applications – where oral application for adjournment made following delivery of the primary judge’s ex tempore judgment – whether primary judge denied the appellants procedural fairness by declining to adjourn hearing of the originating application – whether characterisation by the IAA of extortion suffered by the appellants as not amounting to “serious harm” was illogical – whether IAA made findings of fact that were either not supported by any evidence or which overlooked material evidence

Legislation:
Migration Act1958 (Cth) ss 5J, 36

Federal Circuit Court Rules 2001 (Cth) r 16.05

Cases cited:
AIC15 v Minister for Immigration and Border Protection [2018] FCA 774

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446

BGV15 v Minister for Home Affairs [2018] FCA 1753

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

House v The King (1936) 55 CLR 499

Jansen v Salisbury Wrought Iron Works Pty Ltd [2007] SASC 73

Keating v Keating [2017] FamCAFC 86

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452

SZWCO v Minister for Immigration and Border Protection [2016] FCA 51

Date of hearing: 12 December 2018

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 41

Counsel for the Appellants: Mr H Glenister on a pro bono basis

Solicitor for the Appellants: Cathal Smith Legal

Counsel for the Respondents: Mr P Hannan

Solicitor for the Respondents: Sparke Helmore

ORDERS

WAD 131 of 2018

BETWEEN:
BTT16

First Appellant

BTU16

Second Appellant

BTV16

Third Appellant

AND:
MINISTER FOR HOME AFFIAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

28 FEBRUARY 2019

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court of Australia made on 20 March 2018 are set aside.
3.In lieu thereof, the following orders are substituted:
(a)A writ of certiorari, directed to the second respondent, quashing the decision of the second respondent made on 1 July 2016.
(b)A writ of mandamus, directed to the second respondent, requiring it to determine according to law the application for review of the decision of the delegate of the first respondent made on 24 May 2016.
(c)The first respondent is to pay the applicants’ costs of and incidental to the application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCA 251
Decision Date: 28 February 2019

CaseChat Overview and Summary

The appeal was heard by the Full Court of the Federal Court of Australia, consisting of Chief Justice Allsop, Justice Edelman, and Justice Gordon. The appellants, a family of three who arrived illegally in Australia, sought judicial review of a decision by the Immigration Assessment Authority (IAA) affirming the Minister's refusal of their applications for temporary protection visas. The appellants argued that they faced persecution if returned to Sri Lanka due to past experiences of violence, extortion, and discrimination based on their ethnicity and religious conversion. The primary judge dismissed the application for judicial review, and the appellants now appealed the decision.

The central legal issues in the appeal were whether the primary judge erred in declining to adjourn the hearing of the originating application after delivering an ex tempore judgment, and whether the IAA had correctly assessed the appellants' claims of "serious harm." The appellants contended that the IAA's characterisation of the extortion they suffered as not amounting to "serious harm" was illogical and that the IAA had made findings of fact either unsupported by evidence or which overlooked material evidence. Additionally, the appellants argued that the primary judge had denied them procedural fairness by not granting an adjournment after the delivery of the ex tempore judgment.

The Full Court found that the primary judge had indeed erred in declining to adjourn the hearing after delivering the ex tempore judgment, which deprived the appellants of procedural fairness. The Court also found that the IAA had made errors in its assessment of the appellants' claims, particularly regarding the characterisation of the extortion as not amounting to "serious harm." The Court held that the IAA's findings were illogical and had overlooked material evidence. Consequently, the appeal was allowed, the orders of the Federal Circuit Court were set aside, and new orders were substituted. The IAA was directed to reconsider the appellants' application for review according to law, and the Minister was ordered to pay the appellants' costs of the judicial review application and the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the Federal Circuit Court of Australia made on 20 March 2018 are set aside.

3. In lieu thereof, the following orders are substituted:

(a) A writ of certiorari, directed to the second respondent, quashing the decision of the second respondent made on 1 July 2016.

(b) A writ of mandamus, directed to the second respondent, requiring it to determine according to law the application for review of the decision of the delegate of the first respondent made on 24 May 2016.

(c) The first respondent is to pay the applicants’ costs of and incidental to the application for judicial review filed on 14 July 2016.

4. The first respondent is to pay the appellants’ costs of and incidental to the appeal as assessed or agreed.

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

Background

Background to the litigation

Three appellants, being a husband, wife and son, appeal a decision of the Federal Circuit Court dismissing their application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) which affirmed the decision of the delegate of the first respondent (the “Minister”) to refuse the grant of temporary protection visas. The husband is a Sri Lankan Tamil Hindu who has converted to Christianity. His family arrived illegally in Australia in 2012.Background The appellants sought protection visas in reliance upon s 36(2)(a) or s 36(2)(aa) of the Migration Act1958 (Cth) (the “Act”). Their claims of fear arising from their proposed return to Sri Lanka were summarised by the IAA at [20]-[22] of its decision as follows:20. The applicant’s claims to protection can be summarised as follows:•In 1958, 1977 and 1983, he and his family were caught up in communal violence in which Sinhalese mobs attacked Tamils throughout Sri Lanka. Their properties and businesses were destroyed and they were forced to relocate from Kandy to Eastern Province.•Tamils are denied jobs and educational opportunities based on their ethnicity.•During the war Tamils were persecuted as suspected LTTE supporters. In 1986 a group of the applicant’s friends were killed by the Sri Lankan Army (SLA). In 1990 the applicant was rounded up with 90 other Tamil men, detained and tortured.•During the war the applicant was required to pay regular amounts of money to the LTTE. The man who collected the money subsequently defected to the Karuna Group which split from the LTTE and provided intelligence information to the government about former LTTE members and supporters. The applicant claims that he is therefore known as a supporter of the LTTE.•In 2010 when he operated his jewellery shop in Batticaloa he was targeted for extortion and robbery, suggesting that this was carried out by government security forces and their armed paramilitary supporters because he was known as an LTTE supporter. He claimed that he was similarly subjected to extortion and the threat of harm when he opened a restaurant in Batticaloa in January 2012 and this forced him to leave Sir Lanka in August 2012.•In 2011 after he was forced to close his jewellery business he relocated to Kalmanai where women were subjected to attacks by “Grease men”. Because of the danger he and his family could not stay there.•The personal details of the applicants were revealed in the January 2014 [Department of Immigration and Border Protection] “data breach”. Since then, he has been told that the armed forces have been making inquiries of his family members as to his whereabouts.•Illegal departure/failed asylum seeker – the applicant claims that because he left Sri Lanka illegally he faces harm on return.•Conversion to Christianity – the applicant, formerly a Hindu, has been baptised as a Christian in Australia. Although he did not claim to fear harm on this basis the delegate dealt with an implied claim that he might face harm for reason of his religion.21. The second named applicant made her own claims to protection, stating that•She has been imputed with the profile of an LTTE supporter because of her marriage to the applicant; and because her first husband was detained in a roundup of Tamil men in 2004, detained and tortured.•As a Tamil, she has faced the threat of harm and sexual violence during various periods in Sri Lanka when she was been [sic] single, or living alone, although she has never actually been harmed.•She has been baptised as a Christian in Australia; as with the applicant, the delegate dealt with an implied claim that she might face harm on this basis.•She fears harm because of her illegal departure from Sri Lanka•She fears harm as a result of the “data breach”.22.The delegate considered the following claims that were explicitly made, or implied, in relation to the third named applicant•Because of his association with his step father, the applicant, and his biological father, and because he is approaching adolescence, he may be imputed as a supporter of the LTTE•He faces harm because of the data breach•He faces harm because he left Sri Lanka illegally

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	BTT16 & Ors v Minister for Immigration &Anor [2018] FCCA 1125
File number:	WAD 131 of 2018
Judge:	STEWARD J
Date of judgment:	28 February 2019
Catchwords:	MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether primary judge erred in dismissing an application for judicial review of a decision of the Immigration Assessment Authority affirming refusal of temporary protection visa applications – where oral application for adjournment made following delivery of the primary judge’s ex tempore judgment – whether primary judge denied the appellants procedural fairness by declining to adjourn hearing of the originating application – whether characterisation by the IAA of extortion suffered by the appellants as not amounting to “serious harm” was illogical – whether IAA made findings of fact that were either not supported by any evidence or which overlooked material evidence
Legislation:	Migration Act1958 (Cth) ss 5J, 36 Federal Circuit Court Rules 2001 (Cth) r 16.05
Cases cited:	AIC15 v Minister for Immigration and Border Protection [2018] FCA 774 Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 BGV15 v Minister for Home Affairs [2018] FCA 1753 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 House v The King (1936) 55 CLR 499 Jansen v Salisbury Wrought Iron Works Pty Ltd [2007] SASC 73 Keating v Keating [2017] FamCAFC 86 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452 SZWCO v Minister for Immigration and Border Protection [2016] FCA 51
Date of hearing:	12 December 2018
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	41
Counsel for the Appellants:	Mr H Glenister on a pro bono basis
Solicitor for the Appellants:	Cathal Smith Legal
Counsel for the Respondents:	Mr P Hannan
Solicitor for the Respondents:	Sparke Helmore

JUDGE:	STEWARD J
DATE OF ORDER:	28 FEBRUARY 2019