BTT16 v Minister for Immigration - [2020] FCCA 2134

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTT16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2134

Catchwords:
MIGRATION – Temporary Protection visa – decision of the Immigration Assessment Authority – whether the IAA unreasonably failed to extend time to provide information and submissions – whether the IAA made a finding without evidence – jurisdictional error established as findings made without evidence – writs issued.

Legislation:

Migration Act 1958 (Cth), pts.7, 7AA, div.3, ss.5, 5AAA, 5J, 46A, 473CA, 473CB, 473DA, 473DB, 473DD, 473DE, 473DF, 473GA, 473GB

Migration Regulations 1994 (Cth), reg.4.42

Cases cited:

BSE17 v Minister for Home Affairs [2018] FCA 1926
BVD17 v Minister for Immigration & Border Protection [2019] HCA 34
DNQ18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 72
ENJ17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1079
Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216

Minister for Immigration & Border Protection v SZVFW [2018] HCA 30

MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151

First Applicant:

BTT16

Second Applicant:

BTU16

Third Applicant:

BTV16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 224 of 2019

Judgment of:

Judge Kendall

Hearing date:

24 June 2020

Date of Last Submission:

24 June 2020

Delivered at:

Perth

Delivered on:

5 August 2020

REPRESENTATION

Counsel for the Applicants:

Mr H W Glenister

Solicitors for the Applicants:

William Gerard Legal Pty Ltd

Counsel for the First Respondent:

Ms S J Oliver

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

A writ of certiorari issue quashing the decision of the second respondent dated 23 May 2019.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicants’ application according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 224 of 2019

BTT16

First Applicant

BTU16

Second Applicant

BTV16

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants in this matter are citizens of Sri Lanka. They arrived in Australia as unauthorised maritime arrivals on 6 September 2012 (Court Book (“CB”) 194). The first applicant and the second applicant are husband and wife respectively. The third applicant is their son.
On 25 June 2015, the first respondent (the “Minister”) exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the “Act”) and invited the applicants to apply for a Temporary Protection (subclass 785) visa (the “visa”) (CB 35-41). The applicants were subsequently advised on 8 July 2015 that they could also apply for a Safe Haven Enterprise (subclass 790) visa (CB 42-47).
On 19 August 2015, the applicants applied for the visa (CB 50-168). The first applicant and the second applicant made claims for protection in their own right. Both claimed that they were at risk because of their association to one another. The first applicant’s…

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: [2020] FCCA 2134
Decision Date: 5 August 2020

CaseChat Overview and Summary

The applicant, BTT16, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Temporary Protection visa. The core of the dispute revolved around the IAA's refusal to extend the time for BTT16 to provide information and submissions, and whether the IAA made findings without supporting evidence. The matter was heard by Judge Kendall in the Federal Circuit and Family Court of Australia.

The court was required to determine two primary legal issues. Firstly, whether the IAA acted unreasonably in failing to grant an extension of time for the applicant to submit necessary information and submissions. Secondly, the court had to consider whether the IAA made critical findings of fact in its decision without any evidentiary basis, which would constitute jurisdictional error.

Judge Kendall found that the IAA had indeed made findings without evidence, thereby establishing jurisdictional error. The court reasoned that the IAA's decision contained assertions that were not supported by any material before it. This failure to base findings on evidence meant that the IAA had not lawfully exercised its powers. Consequently, the court determined that the decision of the IAA was vitiated by jurisdictional error.

Writs were issued by the court, quashing the decision of the Immigration Assessment Authority.

Orders