Bue18 v Minister for Home Affairs
[2021] FedCFamC2G 91
•30 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BUE18 v Minister for Home Affairs [2021] FedCFamC2G 91
File number(s): MLG 929 of 2018 Judgment of: JUDGE RIETHMULLER Date of judgment: 30 September 2021 Catchwords: MIGRATION – summary dismissal – unauthorised maritime arrival – no matters of principle Legislation: Migration Act1958 (Cth), ss 5, 5AA, 473GB Cases cited: CHV17 v Minister for Immigration and Border Protection [2021] FCCA 1489
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1012
EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879
EXL19 v Minister for Immigration [2020] FCCA 1255
Plaintiff B9/2014 v Minister for Immigration and Border Protection [2014] FCAFC 178, (2014) 227 FCR 494
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of last submission/s: 21 September 2021 Date of hearing: 21 September 2021 Place: Melbourne (via Microsoft Teams) Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Ghaffari Lawyers Solicitor for the Respondents: Australian Government Solicitor Counsel for the Respondents: Mr Kaplan ORDERS
MLG 929 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BUE18
ApplicantAND: MINISTER FOR HOME AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE RIETHMULLER
DATE OF ORDER:
30 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Grounds 1 and 2 of the Applicant’s Second Further Amended Application be dismissed.
2.Costs be reserved.
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 RIETHMULLER:
The applicant sought a protection visa, which was refused by the delegate and subsequently the delegate’s decision was affirmed by the Immigration Assessment Authority (‘the IAA’).
The matter proceeded today on the basis of a summary judgment application by the Minister with respect to Grounds 1 and 2 of the applicant’s Second Further Amended Application.
BACKGROUND
The applicant is a citizen of Iran who flew to Indonesia and then travelled by boat to Australia, arriving on 7 June 2013 at the territory of Christmas Island. Upon arrival at Christmas Island, he was placed in immigration detention until 11 July 2013, when he was transferred to immigration detention at Darwin. He was released from immigration detention on 30 July 2013 and thereafter has held a series of temporary visas.
The applicant claims that he departed Iran on 25 May 2013 by airplane, arriving in Indonesia around 3 June 2013 after a stopover in Qatar and then in Malaysia: see paragraph [45] of the Applicant Submissions filed on 3 August 2020. The applicant says that around 3 June 2013, he departed from Indonesia by boat (referred to in the material as ‘SIEV 737’).
The applicant claims that he boarded the boat just before midnight, and that the following morning, the person in charge of the vessel boarded an escorting vessel, leaving the vessel in the hands of a child from Indonesia: see paragraph [10] of the Affidavit in Support of the Application in a Case filed on 3 August 2020. Over the next few days, the weather conditions worsened and the persons on the boat had to discharge water from the vessel using buckets. The engine also failed a number of times, on one occasion for 10 hours. The applicant noticed Australian patrol aircraft, following which two other Iranians forced the Indonesian child to give them his mobile telephone, which they used to call Australian authorities to advise them that they were in distress as a result of the bad weather. The applicant understands that Australian authorities advised that the vessel was on the correct course for Australia and that it took between eight to 10 hours for them to reach Christmas Island. When the vessel was “very close to Christmas Island”, close enough that they could see the island, they were intercepted by one or two Australian vessels. They were then taken on board the Australian vessels as they “were actually stranded at sea”.
In earlier written submissions, Counsel for the applicant submitted that the applicant was ‘rescued’ by the Australian vessels, which were carrying the Commonwealth of Australia flag and registered in Canberra in the Australian Capital Territory (ACT): see paragraph [3] and [12] of the Applicant Submissions filed on 3 August 2020. In Counsel’s earlier submissions, at paragraph [50], it was submitted that the documents discovered show that the applicant was rescued one nautical mile northwest of Christmas Island inside the Australian Contiguous Zone.
The evidence filed by the applicant indicates that the applicant was on board a vessel at sea which had become distressed due to engine failures and taking water on board, and was rescued within sight of Christmas Island. This is entirely consistent with the discovered documents that show the vessel was monitored for a period before the people on board were rescued one nautical mile northwest of Christmas Island.
The applicant was subsequently detained pursuant to provisions of the Migration Act1958 (Cth) (‘the Act’), and approximately seven weeks later released on a temporary visa. The applicant has remained in the community since that time.
GROUNDS OF JUDICIAL REVIEW
Ground 1
The first ground of the applicant’s current application is framed as follows:
Ground 1: The non-disclosure of information by way of the SIEV Report gave rise to a practical injustice or a reasonable apprehension of bias in violation of section 473GB of the Migration Act 1958 (Cth)
1.The decision by the respondents to withhold from the applicant the “Christmas Island JIG Information Report” dated 8 June 2013 (SIEV 737 Report), establishing when, where and how the applicant entered Australia, constituted a denial of procedural fairness and prohibited the applicant from presenting full and proper arguments and evidence as to whether the applicant was an “Unauthorised Maritime Arrival” (UMA) or a “Fast Track Review Applicant” (FTRA) as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth) and ultimately whether the applicant was subject to the jurisdiction of the IAA pursuant to section 473C under Part 7AA of the Migration Act 1958 (Cth).
2.Further, the non-disclosure of information by the respondents was not subject to a written “direction” in violation of section 473GD of the Migration Act 1958 (Cth) and was omitted from the “relevant” review material in violation of section 473CB of the Migration Act 1958 (Cth).
3.Ultimately, the non-disclosure of information by the respondents gave rise to a reasonable apprehension of bias and/or a practical injustice in violation of section 473GB of the Migration Act (Cth) and resulted in a constructive failure by the IAA to determine whether it was properly seized of jurisdiction to review the decision pursuant section 473CC of the Migration Act (Cth).
Particulars
The applicant’s entry into Australia
a)The applicant is a citizen of the Islamic Republic of Iran (Iran), who claims protection in the Commonwealth of Australia (Australia) due to a real risk of harm under the refugee and complementary protection criteria for the grounds summarised at [30] of the decision record of the IAA.
b)On 25 May 2013, the applicant departed Iran by plane destined for the Republic of Indonesia, (Indonesia) via a stop over in Qatar and Malaysia. On or around 3 June 2013, the applicant departed Indonesia for Australia by way of a boat subsequently named Suspected Illegal Entry Vessel 737 (SIEV 737).
The search and rescue operation by the Australian authorities
c)“At approximately 10:42 AEST Friday 7 June 2013, a contact of interest (COI) was detected on the Christmas Island radar approximately 13nm west north west of Christmas Island. At approximately 1238.”
d)“AEST Friday 07 June 2013, HMAS GLENELG, operating under the control of BPC, boarded the COI, now designated SIEV 737, 1 nautical mile north west of Christmas Island, inside the Australian Contiguous Zone. Initial estimates are 69 people on board, reported to be 67 Iranian as well as 2 Indonesian crew.”
e)SIEV 737 was boarded and detained by officers belonging to the Commonwealth of Australia, carrying the flag of the Commonwealth of Australia, which is registered to Canberra, in the Australian Capital Territory (ACT) of the Commonwealth of Australia, 1 nautical mile north west of Christmas Island, inside the Australian Contiguous Zone.
f)At the material time, the rescue vessel belonged to the Commonwealth of Australia, was registered to Canberra, which was not an excised offshore place as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). As a consequence, the applicant was not an “offshore entry person” or a “UMA” or a “fast track review” applicant as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth) for the purposes of Part 7AA of the Act.
The detention of the applicant
g) “By approximately 1505 AEST Friday 07 June 2031, HMAS GLENELG, had transferred the 69 people from SIEV 737 into the care of Australian Government agencies at Christmas Island. The confirmed number of people from SIEV 737 is 69, reported to be 67 Iranian PII as well as 2 Indonesian crew.”
h) On 7 June 2013, an officer for the Minister issued a “notice of detention of unlawful non citizens who are in an excised offshore place” to the applicant pursuant to section 189(3) of the Migration Act 1958 (Cth). The applicant was subject to a search and rescue operation by the Australian authorities and was boarded and detained by the Australian authorities in the Australian contiguous zones prior to the execution of the instrument on Christmas Island.
i) The applicant was detained at the CIDC from 7 June 2013 until 11 July 2013. On 12 July 2013, the applicant was detained at the NIDC in Darwin until 30 July 2013. On 30 June 2013, the applicant was transferred into community detention, where he faces restrictions on his liberty which members of the public do not face, including access to employment, study, medical, housing and welfare rights, until the present day.
Jurisdictional error
j) Ultimately, the non-disclosure of information by the respondents gave rise to a reasonable apprehension of bias and/or a practical injustice in violation of section 473GB of the Migration Act (Cth) and resulted in a constructive failure by the IAA to determine whether it was properly seized of jurisdiction to review the decision pursuant section 473CC of the Migration Act (Cth).
The crux of the case put by the applicant in this ground turns upon the argument that he entered Australia as a result of boarding the Australian rescue vessel at sea, and therefore is not within the definition of ‘Unauthorised Maritime Arrival’ in the Act, which would mean that the IAA did not have jurisdiction to review the delegate’s decision in his case. This argument is clearly untenable for the reasons set out in decisions of four other judges of this court: EXL19 v Minister for Immigration [2020] FCCA 1255 per Judge Humphreys; EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879 per Judge Riley; EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1012 per Judge Driver; and CHV17 v Minister for Immigration and Border Protection [2021] FCCA 1489 per Judge Cameron. The reasons provided in these cases are compelling and it is appropriate that I follow these decisions. If the law as set out in these decisions is to be challenged then it should be in the Full Court of the Federal Court, not before another first instance judge.
This also appeared to be an argument that Counsel formerly rejected in his earlier written submissions where Counsel stated :
36. It is, of course, correct that by boarding a vessel, the refugee comes under the jurisdiction of the flag State which is considered to exercise jurisdiction over the ship on the high seas. There is, however, no valid legal basis for considering that by boarding a vessel a refugee has entered the territory of the State exercising jurisdiction over the ship. Moreover, even if physical presence on the ship were regarded as tantamount to presence in the territory, this would not in the present status of international law constitute an obligation for the flag State to grant durable asylum.
However, it transpires that this was actually a quote from a UNHCR document ‘Problems Related to the Rescue of Asylum-Seekers in Distress at Sea EC/SCP/18’ of 26 August 1981, and the proposition was eschewed by Counsel in oral argument.
Even if the argument that boarding a vessel registered in Australia led to some form of legal fiction that the applicant was then in Australia, it still does not assist the applicant in his claim that the IAA did not have jurisdiction. The Act provides a scheme for the determination of visa applications by delegates of the Minister and the review of those decisions by either the Administrative Appeals Tribunal or IAA. The Act makes it clear that decisions from this period with respect to ‘Unauthorised Maritime Arrivals’ must be reviewed by the IAA: so much appears to be accepted by the applicant’s Counsel. The definition of an ‘Unauthorised Maritime Arrival’ is contained in ss. 5 and 5AA of the Act. The applicant clearly falls within the definition as he first ‘entered Australian by sea’ either by boarding the rescue vessel or landing upon Christmas Island: see Plaintiff B9/2014 v Minister for Immigration and Border Protection [2014] FCAFC 178, [19]; (2014) 227 FCR 494 at 498. Thus, the IAA must have jurisdiction.
In this matter, however, Counsel does not pursue this argument directly, as he did in the four cases listed above, rather it is put on the basis that a failure to provide discovery of documents concerning the rescue at sea “gave rise to a practical injustice or a reasonable apprehension of bias in violation of section 473GB”. In putting the case on this basis, Counsel attempts to avoid confronting the reality that the underlying proposition is untenable by reframing the case in terms of the hearing process failing to provide materials that may go to the proposition.
The argument must fail on the simple basis that, save in most unusual circumstances, the failure to provide documents that are only relevant to an untenable argument cannot found a remedy.
Each of the three points raised by the applicant can be dealt with in simple terms. First, there can be no practical injustice that results from the applicant not receiving copies of the documents concerned when they do not arguably bear upon the jurisdiction of the IAA in this case. Secondly, that the IAA did not have knowledge of the rescue reports cannot found an argument of reasonable apprehension of bias as it is not material that they knew of, nor could it have made a difference to their decision or affected their assessment of the applicant’s case. Finally, there can be no argument based upon the operation of s. 473GB of the Act as the document was never given to the IAA, nor could there be criticism of the Secretary for not giving the IAA a document that could not have made a difference to the outcome of the review.
I therefore find that the applicant does not have an arguable case with respect to the matters raised in Ground 1.
Ground 2
Ground 2 is framed by the applicant as:
Ground 2: The “No Advantage Principle” and the “No-Resettlement in Australia” regimes were unlawful
5.The decision by the Minister to subject the applicant to the “No Advantage Principle” and the “No-Resettlement in Australia” regimes, resulting in the detention of the applicant for “five or more years” was unlawful.
Particulars
a) For the particulars at ground (1).
The ‘No Advantage Principle’ - the Expert Panels Report
a)On 13 August 2012, the Commonwealth released the Report of the Expert Panel on Asylum Seekers. Pursuant to Recommendation 1:
The application of a ‘no advantage’ principle [is] to ensure that no benefit is gained through circumventing regular migration arrangements.
b)Pursuant to Recommendation 7:
The Panel recommends that legislation to support the transfer of people to regional processing arrangements be introduced into the Australian Parliament as a matter of urgency
c)Pursuant to Recommendation 8:
The Panel recommends that a capacity be established in Nauru as soon as practical to process the claims of IMA s transferred from Australia in ways consistent with Australian and Nauruan responsibilities under international law
d)Pursuant to Recommendation 9:
The Panel recommends that a capacity be established in PNG as soon as possible to process the claims of IMAs (irregular maritime arrivals) transferred from Australia in ways consistent with the responsibilities of Australia and PNG under international law.
e)Pursuant to Recommendation 14:
The Panel recommends that the Migration Act 1958 be amended so that arrival anywhere on Australia by irregular maritime means will not provide individuals with a different lawful status than those who arrive in an excised offshore place.
Particulars
i) Report of the Expert Panel on Asylum Seekers dated August 2012.
“5 years or more” in detention
f)The then Minister for the Department of Immigration and Citizenship (DIAC), the Hon. Chris Bowen stated in an ABC News Radio interview with Marius Benson, dated 22 November 2012, that it would take five or more years to process refugee claims under the ‘No Advantage Principle.’
Particulars
i)The Hon. Chris Bowen MP, ‘ABC Interview with Marius Benson,’ 22 November 2012.
g)The then opposition leader and former Prime Minister of Australia, the Hon. Tony Abbott and the then Opposition Spokesperson for Immigration and now the Minister for Immigration and Border Protection, the Hon. Scott Morrison, were quoted in ‘The Australian’ newspaper on 30 October 2013 that ‘boatpeople could expect to spend at least five years under a Coalition Government.’
Particulars
i)The Australian, ‘Tony Abbott sets stay at five years’ 19 October 2012
h)The UNHCR reported that asylum seekers had been told by Australian Government officials that ‘they would have to wait five years before a durable solution would be found.’
Particulars
i) UNHCR Mission to the Republic of Nauru, 3-5 December 2012 [14]
i)The Australian Human Rights Commission reported that ‘…it will take five or more years to process refugee claims under the ‘No Advantage Principle.’
Particulars
i)The Australian Human Rights Commission, Examination of the Migration (Regional Processing) Package of Legislation, Submission to the Parliamentary Joint Committee on Human Rights, January 2013 page 6.
j)Amnesty International reported that ‘five years could be the wait time for asylum seekers under the ‘No Advantage’ policy.
Particulars
i)Amnesty International, Media Release, 23 November 2012
The Incorporation of the ‘No Advantage Principle’ into the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).
k)On 18 August 2012, the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), received assent and amended the Migration Act 1958 (Cth).
Particulars
i)Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).
l)According to the Revised Explanatory Memorandum, “the Bill implements key recommendations of the Report of the Expert Panel on asylum Seekers provided to the Prime Minister and the Minister for Immigration and Citizenship on 13 August 2012.”
Particulars
i)The Parliament of the Commonwealth of Australia, Migration Legislation Amendment (Regional Processing and other Measures) Bill 2012, Revised Explanatory Memorandum
m)According to the Second Reading Speech by the then Minister for Immigration and Citizenship, dated 31 October 2012: “this bill amends the Migration Act 1958 in accordance with the report of the Expert Panel on Asylum Seekers and the application of the 'no advantage' principle is to ensure that no benefit is gained through circumventing regular migration pathways…”
Particulars
i)Commonwealth, Parliamentary Debates, House of Representatives, 21 September 2011, 10946, (Chris Bowen, MP).
The Regional Resettlement Arrangement (RRA)
n)On 19 July 2013, Australia and PNG and Nauru formally entered into the ‘Regional Resettlement Arrangement’ (RRA), signed by the former Prime Minister, Kevin Rudd and the Prime Minister of PNG, the Hon Peter O’Neil (undated). According to the then Prime Minister, The Hon. Kevin Rudd:
From now on, any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees.
o)On 19 July 2013, a joint media statement was released by Kevin Rudd - Prime Minister, Mark Dreyfus- Attorney General and The Hon Tony Burke MP Australian Minister for Immigration, Multicultural Affairs and Citizenship, stating:
As of today asylum seekers who come here by boat without a visa will never be settled in Australia.
p)Subsequently, it was announced by the governments of Australia and Nauru and PNG that any unauthorised maritime arrivals found to be refugees, would “never come to Australia” and would be “resettled in PNG and Nauru.” Further “[p]ersons found not to be refugees may be held in detention or returned to their home country or a country where they had right of residence.”
Particulars
i) Regional resettlement arrangement between Australia and PNG, 19 July 2013
ii) Joint media release dated 19 July 2013, issued by the Prime Minister of Australia, the Minister for Immigration, Multicultural Affairs and Citizenship and the Attorney-General of the Commonwealth.
ii)Transcript of Joint Press Conference 19 July 2013
The Australian Government Fact Sheet – The ‘No Advantage’ Principle still applies to the Regional Resettlement Arrangements
q)As part of the announcements, the Australian Government released a fact sheet on the operation of the RRA, which states that ‘[t]he government will still apply the principle of no advantage’.
Particulars
i)The Australian Government Fact Sheet
The “No Advantage” and “No Resettlement” regime
r)The applicant participated in various interviews with officers from the Department. The applicant told an officer to the Minister in words to the effect that he was a refugee because he feared persecution in Iran and that he claims protection in Australia.
s)An officer to the Minister gave the applicant various information sheets regarding the “No-Advantage” and the “No-Resettlement” regimes, which were translated in different languages. The officer to the Minister told the applicant the following information.
i) The applicant may be sent to the Nauru or PNG;
ii) If the applicant was found not to be a refugee, he would be returned to Iran;
iii) If the applicant was found to be a refugee, he may be re-settled in Nauru or PNG;
iv) That the applicant faces five or more years in detention whilst his refugee claims were processed;
v) That the applicant could return to Iran at any time and that he would be eligible for Australian government payments to do so;
vi) The applicant would never be re-settled in Australia.
Beyond power
t)The decision by the Minister to commence inquiries into Australia’s protection obligations with regard to applicant and the decision itself, were not made as soon as reasonably practicable and constituted a failure to exercise jurisdiction.
u)In so far as section 189 and section 196 of the Migration Act 1958 (Cth), purported to authorise the detention of the applicant in closed and then open detention from March 2013 until the present day, such detention was not and is not necessary, or reasonably capable of being seen as necessary:
i)for the purposes of the applicant’s removal from Australia;
ii) for the purposes of enabling an application for a visa to be made and considered; or
iii)for any other legitimate non-punitive purpose for which the Executive may be validly authorised to detain a non-citizen or alien.
This ground, as currently framed, is difficult to follow. As drawn, the ground appears to allege that the Commonwealth could not lawfully provide a visa of the type sought by the applicant: if this were the case, the applicant could not obtain the visa he seeks and his case would be bound to fail. The substance of the ground appears to be a claim that the Minister held the applicant in detention for an unreasonable period when determining the applicant’s visa application, and that as a result, the applicant was unlawfully detained. Whether such a claim can be sustained or not does not impact upon the determination of the IAA. The remedy for any failure by a government department to determine an application lies in a constitutional writ of mandamus: a delay does not result in a presumption that the application is allowed. This ground does not raise an arguable issue.
CONCLUSION
In the circumstances of this case, I am not persuaded that the applicant has an arguable claim with respect to Grounds 1 or 2 of the Second Further Amended Application. As the applicant has not identified an arguable case in respect of these grounds, it is appropriate that I dismiss these grounds.
The matter has another hearing date with respect to the other grounds. It was accepted that costs should be reserved until the matter is finally determined. I therefore make orders accordingly.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller. Associate:
Dated: 30 September 2021
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