CHV17 v Minister for Immigration and Border Protection
[2021] FCCA 1489
•2 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CHV17 v Minister for Immigration and Border Protection [2021] FCCA 1489
File number: SYG 1673 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 2 July 2021 Catchwords: PRACTICE AND PROCEDURE – application to file amended application and statement of claim – whether proposed application had reasonable prospects of success Legislation: Migration Act 1958, ss 5, 5AA, 5H, 5J, 13, 14, 36, 46A, 189, 438, 473BB, 473CA, 473GB, 476
Federal Circuit Court of Australia Act 1999, ss 15, 17A
Federal Court of Australia Act 1976, s 31A
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013, sch.4
Federal Circuit Court Rules 2001, rr 1.03, 7.01
Cases cited: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175
SZSRR v Minister for Immigration and Border Protection [2017] FCA 328
Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd [2010] FCA 494
Heath v Goodwin (1986) 8 NSWLR 478
Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920
J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581
Spencer v Commonwealth (2010) 241 CLR 118
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447
Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1
Ruddock v Vadarlis (2001) 110 FCR 491
Eatts v Dawson (1990) 21 FCR 166
Ugur v Attorney General for New South Wales [2019] NSWCA 86
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 355 ALR 405
Number of paragraphs: 101 Date of hearing: 4 May 2021 Place: Sydney Counsel for the Applicant: Mr J. Williams Counsel for the Respondents: Mr B. Kaplan Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 1673 of 2017 BETWEEN: CHV17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
THE COURT ORDERS THAT:
1.The applicant’s application to file an amended application and a statement of claim be dismissed.
2.The applicant’s application to file a statement of claim be refused.
3.The first respondent’s application for summary dismissal of the initiating application be refused.
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant is a citizen of Iran who arrived at Christmas Island by boat (SIEV 455) on 22 September 2012 with his wife, son and cousin but without a visa permitting him to enter and stay in Australia. Whilst in Australia the applicant and his wife divorced. By letter dated 19 May 2015 the first respondent (“Minister”) invited the applicant to apply for a temporary protection visa (“TPV”) and purported to lift the bar to doing so ostensibly imposed by s.46A of the Migration Act 1958 (“Act”).
On 22 June 2015 the applicant lodged an application for a TPV with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Iran. On 27 September 2016 a delegate (“Delegate”) of the Minister refused the applicant’s application and referred his matter for review to the second respondent (“IAA”). The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
On 4 May 2021 the applicant sought leave to file an amended application. Through that proposed amended application the applicant also seeks an order that the Minister produce documents in response to a subpoena to produce issued at the applicant’s request on 4 March 2021.
These reasons concern that interlocutory application.
BACKGROUND FACTS
The applicant has claimed that he would suffer persecution and significant harm in Iran were he to return, on the basis that he is an atheist and is believed to have acted against the Iranian government. He alleged that while in Iran he was involved in an altercation with the Basij, witnessed by a gathered crowd, during which a Basij officer was injured. The applicant was arrested and bailed by a court but he was then summoned to present himself to a Sepah base. As the Basij officer had died in the meantime, he was advised to flee Iran which he did through Afghanistan. The applicant alleged that since his departure, members of the Sepah and connections of the dead Basij officer had visited his father saying that the applicant should be executed because of the Basij officer’s death.
The applicant has also alleged that while in Australia he has received anonymous telephone calls from Iran threatening to kill him and his son if he spoke against Islam. This was in the context of him having joined a Facebook group called ‘Iranian atheists’ after arriving in Australia and, while in Australia, having discussed his atheism. In the latter connection he referred to a heated argument he had had with a conservative Iranian and the fact that other Iranian asylum seekers with whom he had discussed his views had since returned to Iran.
The applicant’s flight ended at Christmas Island.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. (See below at [30]) The presently relevant parts of the IAA’s findings were summarised by the Minister in his written submissions in the following terms:
19.The decision to refuse the visa was affirmed by the IAA on 3 May 2017.
20.In addition to the material referred to the IAA by the Secretary of the Department, the IAA received and considered a submission made on behalf of the applicant on the basis that it did not constitute new information but rather was a response to the delegate’s decision.
…
22.The IAA had concerns about the credibility of the applicant’s evidence and ultimately found that he had not ‘been truthful in his claims’ …
…
25.The IAA also gave detailed consideration to the applicant’s claim to be an atheist and to have received threatening phone calls. Due to inconsistencies in the applicant’s evidence given upon arrival in Australia and evidence provided in support of his application for the visa, the IAA was not prepared to accept that the applicant was an atheist when he first arrived in Australia. This was a different finding to the delegate who was prepared to accept this. As evidence given in the applicant’s written statement was different from the evidence he gave at the protection visa interview, the IAA did not accept that the applicant received any threatening calls. It found that the applicant manufactured this claim and had not been truthful. Considering the evidence, including the audio recording of the protection visa interview, the IAA accepted that the applicant became interested in atheism in Australia and was now an atheist. However, it found that the applicant had no desire to, and would not, publicise his opinion, ideas, religious beliefs or political opinion if returned to Iran, for reasons unrelated to any fear of harm.
26.This finding was also broadly consistent with the delegate’s decision at least in relation to the finding that the applicant was now an atheist.
27.The IAA considered country information about the treatment of atheists and others who did not practise Islam, and concluded that the applicant did not face a real chance of harm on return to Iran by reason of his conversion to atheism, lack of commitment to Islamic practices, his activities while in Australia or any real or imputed political opinion. It found that the applicant would not be forced to attend Islamic religious gatherings, and that he would be able to obtain work despite his beliefs.
…
29.Then considering its previous findings as against the complementary protection criteria of the Act, the IAA was not satisfied that the applicant faced a real risk of significant harm arising from issues concerning his atheist beliefs or claim for asylum in Australia. …
30.Having considered the applicant’s claims individually and cumulatively, the IAA found that the applicant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review. [references omitted]
I adopt that summary.
PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant pleaded that he was entitled to constitutional writs on the following grounds:
1. Natural justice (particulars will be provided later)
2. Procedural fairness (particulars will be provided later)
3. Error of law (particulars will be provided later)
4. Relevant consideration (particulars will be provided later)
5. Unreasonableness (particulars will be provided later)
Uncertainty (particulars will be provided later)
The applicant has sought to amend his application to make the allegations set out in the document that was Ex.A1 on the present interlocutory application. He seeks to allege through the medium of the proposed amended application that the circumstances of his arrival and related detention were such that although he was classified as an Unauthorised Maritime Arrival (“UMA”), a status discussed in more detail shortly, that classification was erroneous with the consequence that the IAA did not have jurisdiction to review the Delegate’s decision in his case. In the proposed amended application the applicant seeks to allege in that regard that:
a)at about 16:49 AEST on 22 September 2012 a Border Protection Command aeroplane spotted a vessel that was subsequently codenamed SIEV 455, 8 nautical miles north of Christmas Island heading in a south-westerly direction towards Christmas Island;
b)at about the same time Rescue Coordination Centre Australia received details of two 000 calls from a vessel with 70 persons on board, approximately 60 kilometres north of Christmas Island stating “we are in a bad way”. It was subsequently determined that the calls probably came from SIEV 455;
c)the Rescue Coordination Centre of Border Protection Command and the Australian Maritime Safety Authority Joint Rescue Coordination Centre made contact with persons onboard SIEV 455 when it was within the Indonesian Search and Rescue Region and outside Australian territorial waters;
d)SIEV 455 became formally subject to a search and rescue operation implemented by the Australian authorities;
e)at about 17:39 AEST on Saturday 22 September 2012, HMAS Broome boarded SIEV 455 approximately 4 nautical miles north of Christmas Island and inside the Australian Contiguous Zone;
f)at some unspecified time the applicant was detained onboard a vessel registered in Canberra, flying the Australian flag and commanded by officers of the Commonwealth;
g)at about 19:59 AEST on 22 September 2012 HMAS Broome completed the transfer of those who had been onboard SIEV 455 into the custody of Australian Government agencies at Christmas Island;
h)an officer for the Minister subsequently issued a notice of detention to the applicant dated 22 September 2012; and
i)on 30 January 2013 the applicant was released from “closed detention” into community detention.
Although the document that the applicant sought to file was entitled “Amended Application” it was, in large part, a pleading. The proposed terms of the allegations are:
Ground 1: The decision by the Minister and/or officers of the Commonwealth to detain the applicant in or around 12 September 2012, was beyond power
1.The decision by the Minister and/or officers of the Commonwealth to detain the applicant on board SIEV, made on 22 September 2012, was beyond power. As a consequence, the applicant was not a “UMA” or a “FTR” applicant as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). The decision by the IAA made on 26 July 2018 was therefore vitiated by jurisdictional error.
Ground 2: The detention of the applicant in Indonesian waters was contrary to law
2.The decision by the Minister and/or officers of the Commonwealth to rescue and detain the applicant within the Indonesian Search and Rescue Region made on 22 September 2012, without the permission of the Indonesian authorities and outside the territorial waters and contiguous zone of the Commonwealth of Australia, was unlawful. 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) and the exercise of power by the Minister and officers of the Commonwealth was beyond power.
Ground 3: The rescue vessel belonged to the Commonwealth of Australia, was registered to Canberra, which was not an excised offshore
6.At the material date of 22 September 2012, the applicant was detained upon a rescue vessel which belonged to the Commonwealth of Australia and 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) and the exercise of power by the Minister and officers of the Commonwealth was beyond power.
Ground 4:The notice of detention was invalid and/or beyond power
7.On a date and time to be adduced, an officer for the Minister issued to the applicant “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 detained prior to the execution of the instrument and in the circumstances, the detention of the applicant on or around 22 September 2012 was beyond power and/or the notice of detention was invalid. 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) and the exercise of power by the Minister and officers of the Commonwealth was beyond power.
Ground 5:The appointment of the Port of Christmas Island was invalid
5.The port on Christmas Island was declared by the Minister a port on 22 January 1981. Section 3 of the Migration Amendment Act (No 2) 1980 (Cth), which provided the power to proclaim a port on Christmas Island, came into effect a day later, on 23 January 1981. As a consequence, the purported appointment by the Minister of a port as a proclaimed port, in respect of the area of waters within the Territory of Christmas Island, by notice published in the Commonwealth of Australia Gazette on 22 January 1981, was invalid. 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) and the exercise of power by the Minister and officers of the Commonwealth was beyond power.
Ground 6: The “No Advantage Principle” and the “No-Resettlement in Australia” regimes were unlawful
6.The decision by the Minister and officers of the Commonwealth 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.
Ground 7: The decision by the Minister for Home Affairs to delay exercising his power pursuant to section 46A(2) of the Migration Act 1958 (Cth) causing the applicant to become ineligible for permanent protection visa was beyond power
7.The decision by the Minister for Home Affairs on 25 August 2014 to delay the exercise of his power under section 46A(2) of the Migration Act 1958 (Cth) until after Royal Assent to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), thereby causing the applicant to became [sic] ineligible for a Permanent Protection Visa (PPV) and only eligible for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise visa (SHEV), was beyond power.
Ground 8: The IAA failed to consider the real risk of harm faced by the applicant as an apostate under Iran law and therefore constructively failed to review the applicant’s claims under the refugee and complementary criterion
8.The decision by the IAA was affected by jurisdictional error as the IAA failed to respond to a substantial, clearly articulated argument relying upon established facts with regard to the claims or an integer of those claims at [12] that the applicant fears harm as an apostate which is punishable by death and therefore the IAA constructively failed to review the applicant’s claims.
Ground 9: The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) by finding the applicant can modify his behaviour so as to avoid a real chance of persecution
9.The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) at [20], by failing to consider whether the applicant will be forced to modify his (a) religious beliefs as an apostate or (b) his political opinion as an apostate or (c) his membership of a social group as an apostate, so as to avoid persecution in Iran.
Ground 10: The IAA erred by failing to distinguish the application of section 5J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion
10.The decision by the IAA was affected by jurisdictional error as the IAA failed to consider the applicant’s claim that he faces a real risk of significant harm as an apostate under the complementary criterion from [93]-[94] of the decision record. The IAA therefore erred by misinterpreting, misunderstanding or misapplying the applicable law by conflating the considerations regarding the applicant’s claims as an apostate under the refugee criterion from [76]-[79] of the decision record, with the considerations under the complementary criterion from [93]-[94] of the decision record.
Ground 11: The non-disclosure of information under section 473GB of the Migration Act 1958 (Cth)
11.The non-disclosure of the relevant documents subject to a certificate issued under section 473GB of the Migration Act (Cth), gave rise to a practical injustice.
The proposed amended application included lengthy particulars to which reference will be made as necessary.
The applicant would seek the following final relief:
1.Relief in the nature of a Declaration, that the decision made by the Minister or officers of the Commonwealth to detain the applicant on 12 September 2012 was beyond power. As a consequence, the applicant was not a “Unauthorised Maritime Arrival” (UMA) or a “Fast Track Review” (FTR) applicant as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). The decision by the IAA made on 3 May 2017 was therefore vitiated by jurisdictional error.
2.Relief in the nature of a Writ of Habeas Corpus, directing the Minister and/or officers of the Commonwealth to release the applicant from community detention forthwith and to cease the restrictions placed on the liberty of the applicant, which ordinary members of the public do not experience.
3.Relief in the nature of a Writ of Prohibition, restraining the Minister and/or the officers, delegates, agents, employees or contractors of the Minister, from acting upon or giving effect to the decision to detain the applicant in or around September 2012 and the decision by the IAA made on 3 May 2017.
4.Relief in the nature of a Mandatory Writ of Mandamus, directing the Minister to redetermine the decision to delay the exercise of his power under section 46A(2) of the Migration Act 1958 (Cth) until after Royal Assent to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), and grant the applicant a Permanent Protection Visa (PPV).
…
The applicant also sought to file a statement of claim.
The Minister opposed the interlocutory application.
LAW AND PRINCIPLES RELEVANT TO APPLICATION TO AMEND
Rule 7.01 of the Federal Circuit Court Rules 2001 provides that the Court may allow the amendment of an application at any stage in a proceeding in the way and on such conditions as it thinks fit. Rule 1.03 also relevantly provides:
1.03 Objects
(1)The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Court:
• to operate as informally as possible
• to use streamlined processes
• to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
• avoid undue delay, expense and technicality
• consider options for primary dispute resolution as early as possible.
…
Section 17A of the Federal Circuit Court of Australia Act 1999 (“FCCA Act”) relevantly provides:
17A Summary judgment
…
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
…
The pleadings in a case should be in a form that permits the real issues between the parties to be ventilated and decided but, subject to the rules of the particular court, there is no automatic right to amend a pleading. The availability of an unpleaded but arguable claim is only one of the matters which the Court must weigh in the balance when deciding whether to permit an amendment: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175. Another, and one rather the reverse of the former, is whether the new claim that an applicant wishes to include in the pleadings by way of an amendment would have been struck out under s.17A of the FCCA Act had it appeared in the original application: SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [48]-[52]; cf. Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8], [14]; Heath v Goodwin (1986) 8 NSWLR 478 at 482.
In Aon v ANU, the High Court identified various considerations relevant to whether an amendment should be permitted but the parties in this matter were concerned with only one issue – whether the allegations that the applicant wished to raise had sufficient merit that he should be permitted to plead them. Having regard to that focus and to the circumstance more generally, it is not necessary in these reasons to set out all the issues discussed in Aon v ANU or their subsequent consideration in the cases.
The present parties approached the application on the implicit assumption that the considerations raised by s.17A of the FCCA Act were relevant to the present application in that their arguments addressed not just the adequacy of the proposed pleading as a matter of law but also whether the proposed amended application raised any real or genuine dispute as to a material fact that might reasonably be resolved in the applicant’s favour: cf Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [4]-[6]; J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581 at [6].
The operation of s.17A of the FCCA Act and the analogous provision in the Federal Court of Australia Act 1976, s.31A, has been discussed in several cases, most significantly in Spencer v Commonwealth (2010) 241 CLR 118. In that case, the plurality in the High Court held that no paraphrase of the expression “no reasonable prospect” can be adopted as sufficient explanation of its operation, let alone as a definition of its content, saying:
… full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. (per Hayne, Crennan, Kiefel and Bell JJ at 141 [60])
Their Honours were of the view that the elucidation of the term would best proceed by decided cases giving it content over time, noting that it was already apparent that authorities such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 could not be relied on to define the scope of the term. In a separate decision, French CJ and Gummow J identified circumstances in which a finding that a case lacked reasonable prospects of success would not reasonably be available. Their Honours said:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact. (at 132 [25]-[26])
Their Honours were referring to the speech of Lord Hope in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 where, when considering a provision similar to s.17A, his Lordship said:
… it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf MR said in Swain v Hillman [[2001] 1 All ER 91] at 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all. (at 261 [95])
In J & A Vaughan Super v Becton Property Group at [6]-[7], Pagone J summarised principles relevant to the application of a provision such as s.17A:
a)the Court is concerned with substance and not form or deficiencies in pleadings;
b)the enactment of the section lowered the bar for obtaining summary judgment and permits summary judgment where an applicant fails to identify a valid claim on the material before the Court;
c)caution must be exercised before concluding that a claim lacks reasonable prospects of success, especially where evidence can give colour and content to allegations which are best left to be heard and determined at trial;
d)the Court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial;
e)in assessing whether there are reasonable prospects of success, the Court should draw all reasonable inferences in favour of the party whose pleading or action is question; and
f)as the section requires in effect a prediction as to the outcome of a claim, the Court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim.
LAW RELEVANT TO IAA REVIEWS
Unauthorised maritime arrival
Section 5AA(1) of the Act relevantly provides that a person is a UMA if he or she entered Australia by sea at an excised offshore place at any time after the excision time for that place and, relevantly, was not the holder of a visa that was in effect.
The provisions of the Act relevant to whether a person entered Australia by sea at an excised offshore place are:
a)section 5AA which defines “entered Australia by sea” as follows:
(2)A person entered Australia by sea if:
(a)the person entered the migration zone except on an aircraft that landed in the migration zone; or
(b)the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or
(ba)the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or
(c)the person entered the migration zone after being rescued at sea;
and
b)section 5(1) which:
i) prescribes the Territory of Christmas Island, amongst other places, as an excised offshore place, its excision time being 2pm on 8 September 2001 by the legal time in the Australian Capital Territory;
ii) defines “migration zone” as follows:
migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a)land that is part of a State or Territory at mean low water; and
(b)sea within the limits of both a State or a Territory and a port; and
(c)piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port;
and
iii) defines “port” to include “a proclaimed port”. The sea in and adjacent to Flying Fish Cove at Christmas Island was proclaimed a port by notice in the Gazette on 31 August 1994.
Bar on visa applications by unauthorised maritime arrivals
Section 46A(1) of the Act provides that a UMA cannot make a valid application for a visa. However, s.46A(2) of the Act provides that the Minister may, in his or her discretion, lift the bar on an applicant making such an application. At all material times 46A(7) has relevantly provided:
46A Visa applications by unauthorised maritime arrivals
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) …
Fast track review process
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain UMAs: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 5(1) of the Act defines a “fast track applicant” as, relevantly, a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination.
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Part 7AA of the Act sets out the IAA fast track process. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after that decision is made.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the criteria for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
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(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
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(b) the persecution must involve serious harm to the person; and
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(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
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SUBMISSIONS
The applicant’s written submissions referred in the following terms to the considerations relevant to whether leave to amend should be granted:
… the FCCA has broad powers to permit a party to amend an application for review and even to permit a party to conduct its case without filing an amended document, SZSRR v Minister For Immigration and Border Protection [2017] FCA 328 per Gleeson J, from [47][54]. In the circumstances, the Court must have regard to the ‘dictates of justice’, especially where the amendment is ‘necessary’ to correct errors, omissions, or defects, where it is necessary to allow the real questions of fact and law to be raised or to avoid multiplicity of proceedings, Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 155.
The relevance of Queensland v JL Holdings to this case, especially in light of its disapproval in Aon v ANU at 212-213 [96], was not made clear. However, in SZSRR, where Gleeson J noted the relevance of s.17A of the FCCA Act to an application to amend, it was explained at [48] that a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding.
In his written submissions the Minister argued:
Each of the applicant’s 11 proposed grounds of review is doomed to fail. That alone is sufficient for this Court to refuse to grant leave to the applicant to amend his Original Application.
DISCUSSION
As already noted, it is inappropriate to hold a mini-trial to decide interlocutory applications such as the present one. Nevertheless, the circumstances of this matter dictate reasons of some detail.
Ground 1
The first proposed allegation was that:
a)a decision purportedly made on 22 September 2012 by the Minister and/or officers of the Commonwealth to detain the applicant on board SIEV 455 was beyond power;
b)with the consequence that the applicant was not an UMA or a Fast Track Review applicant as defined by ss.5, 5AA or 189 of the Act; and
c)the IAA’s decision of 26 July 2018 was therefore vitiated by jurisdictional error.
The allegation was relevantly particularised as follows:
a)on 22 September 2021, SIEV 455 was boarded by HMAS Broome approximately 4 nautical miles north of Christmas Island and inside the Australian Contiguous Zone;
b)the applicant was subsequently detained on board a Canberra-registered vessel that was commanded by Commonwealth officers;
c)later on 22 September 2012, HMAS Broome transferred SIEV 455’s passengers into the custody of Australian Government agencies at Christmas Island, following which “an officer for the Minister issued a notice of detention to the applicant …” dated 22 September 2012; and
d)on 30 January 2013, the applicant was placed in community detention as a result of which he experienced restrictions on his liberty that ordinary members of the public do not face.
The final two particulars stated:
o)There is no place for a general defence of superior orders or of Crown or executive fiat in Australian law. Neither the Crown nor the executive has any common law right or power to dispense with the observance of the law or to authorize illegality. No power, statutory or non-statutory, authorises the Commonwealth to engage in illegal conduct in the territory of a foreign state, including the territorial waters of a foreign state.
p)The decision by the Minister and /or officers of the Commonwealth to detain the applicant on board a boat on or around 12 September 2012 was therefore void ab initio. A decision that involves jurisdictional error, is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.
The particulars were separated by headings, one of which read “The detention of the applicant by the Australian authorities in Indonesian waters”. The paragraphs under that heading were summarised above at [36(a)] and [36(b)]. However, neither there nor in the allegation and its other particulars was it contended that the applicant had been detained in Indonesian waters. Rather, the applicant particularises this allegation by saying that it was only after SIEV 455 was stopped “approximately 4 nautical miles north of Christmas Island and inside the Australian Contiguous Zone” that he was detained. The body of the applicant’s affidavit sworn 4 March 2021 does not suggest otherwise and he did not submit that its annexures said anything more on the subject. Relevantly, all his affidavit said was:
… I departed Iran for Indonesia and then Indonesia for Australia by boat. I was rescued at sea by the Australian authorities and detained and taken to Christmas Island. I am unable to recall the exact dates and times due to the nature of the voyage from Indonesia to Australia. [9]
Annexed to the applicant’s affidavit was a copy of the Report of the Expert Panel on Asylum Seekers of August 2012 which said at its p.126:
Australia has a 12 nautical mile territorial sea and an adjacent 12 nautical mile contiguous zone. Under Australian and international law, Australian authorities are permitted to take action in the contiguous zone to prevent breaches of Australian migration laws that have occurred, or may occur, in our territorial seas. This includes enforcement action against a vessel suspected of smuggling people to Australia, typically designated as SIEVs.
Although people smuggling vessels are sometimes identified some distance from Australia's contiguous zone (outside 24 nautical miles), there are only limited circumstances under which Border Protection Command (BPC) is able to board these vessels outside the contiguous zone (for example, a safety of life at sea - SOLAS - incident). Therefore, most people smuggling vessels are boarded within 24 nautical miles of Ashmore Islands or Christmas Island or other Australian land mass.
Quite apart from the fact that the contention that the applicant was detained in Indonesian waters is contradicted by his allegation that SIEV 445 was stopped within the 12km limit of Australia’s territorial sea, the evidence led by the applicant from the Report of the Expert Panel on Asylum Seekers provides sufficient reason to find the allegation of detention in Indonesian waters quite uncompelling.
In any event, what happened at sea is not of any particular relevance to present considerations. Significantly, the applicant does not allege that what he purports was an on-water detention was any form of detention under the Act. In contrast, annexed to the affidavit of the Minister’s solicitor Ms Watson, affirmed 11 March 2021, is a copy of a detention notice dated 22 September 2021 addressed to the applicant and stating that it was made at Flying Fish Cove, Christmas Island and that the applicant was “now in immigration detention under section 189 of the Act”.
Further, the matters the applicant seeks to raise in relation to events before he arrived at Christmas Island are not relevant to the Act operating to classify him as a UMA and a fast track applicant. The classification of the applicant as a UMA depended on him having “entered Australia by sea” and that, in turn, depended on him having entered the “migration zone” which, as defined, could not have included going aboard either of the two vessels to which the applicant’s account of events at sea refers. To the extent that the applicant was rescued at sea, that matter would not change his classification as a UMA under the Act. The rescue boat being registered in Canberra is also irrelevant to the classification of the applicant as a UMA because s.5AA(1)(c) of the Act provides that it is the fact of rescue at sea followed by entry into the migration zone that is relevant to that classification, not where the rescuing vessel is registered. In any event, the applicant satisfied the requirement of having “entered Australia by sea” because he entered the migration zone otherwise than by aircraft.
The burden of the first ground of the proposed amended application was that the IAA had lacked jurisdiction to review the Delegate’s decision because the applicant had never been a UMA and so could not have been a fast track review applicant. However, the evidence before the Court discloses that:
a)the applicant was a UMA because:
i) it should be inferred that he did not at any relevant time hold an Australian visa that was in effect; and
ii) he entered Australia by sea at Flying Fish Cove at Christmas Island, whether by sailing into the proclaimed port or by landing on the island itself; and
b)the applicant was a fast track applicant because:
i) he was a UMA who entered Australia between 13 August 2012 and 1 January 2014;
ii) the Minister lifted the s.46A bar in his case; and
iii) he made a valid application for a TPV.
In relation to the latter two sub-subparagraphs, the proposed amended application alleges that the Department wrote to the applicant on 19 September 2017 inviting him to apply for a safe haven enterprise visa (“SHEV”) or a TPV. That is not correct. The Court Book, to which the applicant referred in his written submissions, records that the Department wrote to the applicant on 19 May 2015 advising that the Minister had lifted the s.46A bar and inviting him to apply for a TPV which he did on 22 June 2015.
For the reasons given this proposed ground is misconceived and has no prospects of demonstrating error on the part of the IAA.
Ground 2
The terms of the allegation found in the second ground of the proposed amended application were set out earlier. It is not clear, however, whether the applicant alleges that the unlawful act said to vitiate his classification as a UMA was:
a)the decision “to rescue and detain” him; or
b)acting “to rescue and detain” him,
allegedly inside the Indonesian Search and Rescue Region and outside Australia’s territorial waters and Contiguous Zone. I conclude from the applicant’s written submissions that it is the latter. However, whichever allegation the applicant does make does not affect the classification of him as a UMA because that classification depends on a person having “entered Australia by sea” at an excised offshore place and, relevantly, without a visa. The applicant satisfied that test.
The applicant’s reference to having been detained while at sea is a red herring because, even if true, on the particulars of his own case that occurred no further than 4 nautical miles distant from Christmas Island and within the Australian Contiguous Zone, not in an area over which any other country has any sovereignty or control: Seas and Submerged Lands (Limits of Contiguous Zone) Proclamation 1999. Nothing before the Court supports the suggestion, which is the essence of this allegation, that any such detention occurred outside the Contiguous Zone, in an area for which Indonesia had some form of undefined responsibility, and was beyond power for that reason.
This proposed ground is misconceived, unsupported by the evidence and has no prospects of demonstrating error on the part of the IAA.
Ground 3
The third ground of the proposed amended application alleges that the applicant had been detained on a vessel registered in Canberra. It goes on to allege that because Canberra is not an excised offshore place the applicant was not a UMA and so “the exercise of power by the Minister and officers of the Commonwealth was beyond power”. In his written submissions the applicant argued (under the heading “Ground 2”):
At a time and date to be adduced, 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) and the exercise of power by the Minister and officers of the Commonwealth was beyond power. …
The point seems to be that the intervention of the rescue boat prevented the applicant from becoming a UMA. That argument presupposes, but the applicant did not seek to demonstrate, that by going aboard the rescue boat he entered Australia with the consequence that he could not subsequently enter Australia by sea at Christmas Island and so be classified as a UMA.
As s.5 of the Act provides that:
enter Australia, in relation to a person, means enter the migration zone,
the implication of the allegation must be that the rescue vessel was, itself, part of the “migration zone”. However, such a contention is contradicted by the Act’s definition of “migration zone” which does not comprehend boats or ships except to the extent that they may be resource installations or sea installations.
Because the operation of the Act is such that what happened before the applicant entered Australia by sea, as defined, is not relevant to whether he was a UMA, this proposed ground has no realistic prospects of success.
Ground 4
In his fourth proposed ground the applicant seeks to allege that he was not a UMA or an offshore entry person (“OEP”) because he had been detained, not at an excised offshore place but on a rescue vessel “registered to Canberra”. In his written submissions he relevantly argued:
On a date and time to be adduced, an officer for the Minister issued to the applicant 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 detained prior to the execution of the instrument and in the circumstances, the detention of the applicant on around March 2013 was beyond power and/or the notice of detention was invalid.
By way of explanation, when the applicant arrived in Australia the Act made no reference to UMAs, that term being introduced by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 on 1 June 2013. At the time of the applicant’s arrival, the relevant classification was OEP which was defined by s.5 of the Act in the following terms:
offshore entry person means a person who:
(a)has, at any time, entered Australia at an excised offshore place after the excision time for that offshore place; and
(b)became an unlawful non-citizen because of that entry.
As already noted, s.5 provides that:
enter Australia, in relation to a person, means enter the migration zone.
Additionally, between them, ss.13 and 14 of the Act relevantly provide that an unlawful non-citizen is a non-citizen in the migration zone who does not hold a visa that is in effect.
The change in classification from OEP to UMA, and indeed the existence of the classifications, are not relevant to the validity of the applicant’s detention because the criteria for the exercise of the detention power are different from those that apply to the classification of a person as a UMA or a OEP. One does not depend on the other and, of particular relevance to the present interlocutory application, detention has no role in the classification of a person as a UMP or an OEP, as the definitions of those terms in the Act make clear.
In any event, the foundational element of the proposed allegation is to the effect that the applicant’s detention at Christmas Island was legally ineffective because he had already been detained at sea. Assuming for the sake of argument that there had been some form of detention at sea, of which there is no evidence, proposed ground 4 does not identify the basis on which it is alleged that that detention, said to have occurred before the notice of detention was given to the applicant, prevented the Act from operating according to its terms which, relevantly, were:
189 Detention of unlawful non-citizens
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(3)If an officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non-citizen, the officer must detain the person.
The clear terms of the Act permitted, indeed required, the departmental officer at Christmas Island referred to in the applicant’s submissions to detain the applicant.
For those reasons, this ground lacks reasonable prospects of success.
Ground 5
In the fifth ground of the proposed amended application the applicant seeks to allege that the proclamation of a port at Flying Fish Cove at Christmas Island on 22 January 1981 was invalid and that as a consequence he was never a UMA or an OEP.
In support of that contention, the applicant relied on DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447 in which the Full Court of the Federal Court declared invalid the proclamation of a port at the Western Lagoon of Ashmore Reef in the Territory of Ashmore and Cartier Islands. However, that case is distinguishable from this one and is not authority for the invalidity of the declaration regarding Christmas Island. But even if it had been, it would not be of material relevance.
An apposite authority is Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1. In that case, Mr Sadiqi was rescued at sea by an Australian customs vessel which went on to sail into the Western Lagoon of Ashmore Reef before it had been purportedly proclaimed a port. Because that body of water was “sea within the limits of a State or Territory but not in a port” and the definition of “migration zone” excludes such bodies of water, sailing into it did not amount to entering the migration zone. Mr Sadiqi was then transferred to HMAS Tobruk and conveyed to Christmas Island where he disembarked. Justice McKerracher said:
… the plaintiff did “enter Australia” for the purpose of s 5 of the Migration Act when the HMAS Tobruk first entered both the territorial waters of Christmas Island and the “proclaimed port” at Christmas Island (by reason of the combined effect of the definitions of migration zone in s 5(1), “Territory” in the same subsection, s 7 of the Migration Act and the definition of “port” being a proclaimed port as defined in s 5(1) of the Migration Act). Accordingly, entry into Australia means entry into the migration zone which relevantly includes sea within the limits of a Territory that has a port. Such a Territory is Christmas Island and it does have a port. The port has been duly proclaimed pursuant to s 5(5)(a) of the Migration Act. While entry into the seas would have been the first entry into Australia it is perhaps more obvious that the plaintiff clearly entered the migration zone when he set foot onto land at Christmas Island. (at 39 [168]) (emphasis added)
Consequently, even if the port declaration in relation to Christmas Island was invalid and entry into Flying Fish Cove did not amount to entry to Australia by sea, landing on Christmas Island did and, because he had no visa, upon doing so the applicant became an unlawful non-citizen under the Act. Because of those matters and because Christmas Island is an excised offshore place, not later than upon landing there the applicant became an OEP and later, with the 2013 amendments, a UMP.
That being so, the validity of the proclamation of Flying Fish Cove as a port did not affect the applicant’s status under the Act and so this ground has no prospects of success.
Ground 6
In the sixth ground of the proposed amended application the applicant alleges that his detention, which he asserts lasted 5 years, was unlawful because it arose out of the application to him of the “No Advantage Principle” and the “No-Resettlement in Australia” regimes. In the proposed amended application he would relevantly pray for:
2.Relief in the nature of a Writ of Habeas Corpus, directing the Minister and/or officers of the Commonwealth to release the applicant from community detention forthwith and to cease the restrictions placed on the liberty of the applicant, which ordinary members of the public do not experience.
3.Relief in the nature of a Writ of Prohibition, restraining the Minister and/or the officers, delegates, agents, employees or contractors of the Minister, from acting upon or giving effect to the decision to detain the applicant in or around September 2012 and the decision by the IAA made on 3 May 2017.
The only evidence placed before the Court which sheds light on why the applicant was taken into detention is the detention notice he was given following his arrival at Christmas Island which placed express reliance on s.189 of the Act and relevantly said:
MY NAME IS … . I AM AN OFFICER FOR THE PURPOSES OF SECTION 189 OF THE MIGRATION ACT 1958 ('THE ACT).
UNDER SECTION 189(3) OF THE ACT, IF AN OFFICER KNOWS OR REASONABLY SUSPECTS THAT A PERSON IN AN EXCISED OFFSHORE PLACE IS AN UNLAWFUL NON-CITIZEN, THE OFFICER MAY DETAIN THE PERSON.
CHRISTMAS ISLAND IS AN EXCISED OFFSHORE PLACE FOR THE PURPOSES OF THE ACT. AN UNLAWFUL NON-CITIZEN IS A NON-CITIZEN WHO DOES NOT HOLD A VISA THAT IS IN EFFECT.
ON YOUR ARRIVAL AT CHRISTMAS ISLAND AT 5.10PM ON 22 SEPTEMBER 2012, BASED ON THE AVAILABLE INFORMATION, I REASONABLY SUSPECTED YOU TO BE AN UNLAWFUL NON-CITIZEN AND HAVING REGARD TO THE CIRCUMSTANCES OF YOUR ARRIVAL AND TO RELEVANT GOVERNMENT POLICY, I DECIDED TO DETAIN YOU UNDER SECTION 189(3).
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YOU ARE NOW IN IMMIGRATION DETENTION UNDER SECTION 189 OF THE ACT.
More relevant than that notice to the applicant’s prayers for relief based on his detention is Ms Watson’s affidavit affirmed 11 March 2021 which evidences that the applicant was granted a visa on 30 January 2013. By virtue of s.13(1) of the Act, the consequence of that is that the applicant has been a lawful non-citizen since at least that date. On the applicant’s version of events he was released from “closed detention” into community detention on 30 January 2013. Since he became a visa holder on 30 January 2013, the more appropriate inference would seem to be that on that day he was released from detention into the community as a lawful non-citizen.
The applicant submitted that he remained in detention because he could not leave or return to Australia, could not apply for work or get bank loans. In addresses, he described such limitations as restrictions on his liberty and argued that they might amount to detention.However the limitations complained of by the applicant might be characterised, they do not amount to detention, which is concerned with physical restraints on an individual’s freedom of movement: Ruddock v Vadarlis (2001) 110 FCR 491 per Black CJ at 509 [69] and French J 547 [209], [210]; Eatts v Dawson (1990) 21 FCR 166 at 176-177; Ugur v Attorney General for New South Wales [2019] NSWCA 86 per White JA at [124] and Brereton JA at [132]. Further, the applicant has not identified the mechanism by which those limitations came about. Even if they might be characterised as restraints susceptible to relief via writs of habeas corpus or mandamus, they would not be so susceptible unless they were unlawful and the applicant has made no attempt to demonstrate that, as limitations, they were.
On the evidence the applicant holds a bridging visa and there can be no serious doubt that he is no longer in detention but, even if he were, he has not sought to show that the limitations imposed on him are unlawful. Those matters being so, this proposed allegation cannot support the grant of the relief prayed for in the proposed amended application. As the proposed allegation serves no purpose, leave to allege it would not be granted.
Ground 7
Because of the manner of his entry to Australia and his status, first as an OEP and then as a UMA, the applicant was prevented from applying for a visa by s.46A(1) of the Act in the various forms it took during the relevant period. However, as noted earlier, s.46A(2) provides that the Minister can lift that bar and permit an applicant to apply for a visa, which is what happened in this case in May 2015. Even so, s.46A(7) provides that the Minister was under no duty to consider whether to exercise that power.
In the seventh ground of the proposed amended application the applicant would allege that the Minister decided to delay the exercise of his power under s.46A(2) in order that legislative amendments could be put in place so that he, the applicant, would be unable to qualify for a permanent protection visa and at most could only be granted a TPV or a SHEV. He submitted that the Minister decided on 25 August 2014 to delay the exercise of his power under s.46A(2):
… until the “new year”, following Royal Assent to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), thereby causing the applicant to became [sic] ineligible for a Permanent Protection Visa (PPV) and only eligible for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise visa (SHEV) … .
The applicant also submitted in that connection that:
The failure by the Minister … to exercise power under section 46A(2) of the Migration Act 1958 (Cth) within a reasonable time to allow the applicant to make a valid application for a TPV or a SHEV was beyond power.
The applicant seeks to allege that the purported decision to delay a decision under s.46A(2) “was beyond power”.
In his address to the Court the applicant referred in this context to Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219. However, that case involved facts and issues materially different from those in this case. Its conclusion, that a decision under s.46A(2) had to be made as soon as reasonably practicable, concerned an applicant in detention and the requirement under s.198(2) of the Act that an unlawful non-citizen be removed from Australia as soon as reasonably practicable. In this case, the applicant ceased to be an unlawful non-citizen when he was granted a visa on 30 January 2013, long before the purported delays to which the applicant refers. On the facts as presently known, the argument based on Plaintiff S4 lacks merit.
The Minister argued that the proposed ground was misconceived by reason of s.46A(7). That argument was accepted by Judge Riley in EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879 at [70] . In EHZ18 the allegation was that:
t)The decision by the Minister to commence inquiries into Australia’s protection obligations with regard to applicant and his family and the decision itself, were not made as soon as reasonably practicable and constituted a failure to exercise jurisdiction.
In this case the allegation is that the Minister decided on 25 August 2014 to delay the exercise of his power under s.46A(2) but there is no evidence of that and the applicant’s written submissions refer to a departmental submission to the Minister of 10 October 2013, signed by the Minister on 14 October 2013 of which there is also no evidence. It was not contended that to the extent that such events occurred, if they happened at all, they represented a consideration of the exercise of the s.46A(2) power and, if they did, what significance that consideration might have for the IAA’s decision.
It has not been demonstrated that the seventh proposed ground has reasonable prospects of being made out. This is principally because no evidence has been put before the Court to give any material substance to the proposed allegations of fact and the relevance of some of the factual contentions is not apparent.
But further, and more importantly, the applicant did not demonstrate how making out this allegation would justify the relief sought in relation to it, namely:
4.Relief in the nature of a Mandatory Writ of Mandamus, directing the Minister to redetermine the decision to delay the exercise of his power under section 46A(2) of the Migration Act 1958 (Cth) until after Royal Assent to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), and grant the applicant a Permanent Protection Visa (PPV).
What purpose such relief would serve is not apparent, given that it is not possible for the Minster to go back in time and re-exercise the discretion in the legislative environment that existed before the Royal Assent was given to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
The ground is futile and leave to plead it will not be granted.
Ground 8
In the eighth ground of the proposed amended application the applicant would allege that the IAA failed to consider one of his claims, namely a claim to fear harm for being an apostate. His written submissions augmented that allegation by contending that:
The IAA failed entirely to deal with the question as to whether the applicant faces a real risk of serious harm under the refugee criterion as a “practicing” [sic] atheist and in turn, as an “apostate” under Sharia law in Iran, which carries the death sentence. [83]
The summaries of the applicant’s claims advanced in support of his application for a visa and the IAA’s consideration of them set out earlier in these reasons demonstrate that this ground cannot be made out. Contrary to the contention that the IAA had “failed entirely” to deal with that issue, the IAA considered it at some length in relation to the applicant’s refugee claims in paras.76, 77 and 79 of its decision and in paras.93 and 94 in relation to his complementary protection claims.
The applicant’s written submissions also argued that the IAA had not had the benefit of certain country information which was not in existence at the time of its decision. Quite apart from the impossibility of such circumstances amounting to jurisdictional error for chronological reasons, that submission was an invitation to impermissible merits review.
Ground 9
The allegation proposed for the ninth ground of the proposed amended application contended that the IAA erred by failing to consider whether, were he to return to Iran, the applicant would have to modify his religious beliefs or related behaviour in order to avoid persecution there. That allegation cannot succeed because it fails to have regard to the IAA’s statement in para.78 of its reasons:
I consider that upon return, the applicant would continue practising atheism in the same way that he did in Australia by conducting his own research and to share his views with close friends in private if he wishes to do so, without modifying his behaviour.
Plainly the IAA did consider the issue in question, with the consequence that the allegation that it did not cannot be made out.
Ground 10
In the tenth ground of the proposed amended application the applicant would allege that the IAA failed to consider whether his apostasy engaged Australia’s complementary protection obligations and conflated the considerations relevant to the refugee test with those relevant to the complementary protection test. As already noted, the IAA’s consideration of the applicant’s apostasy in the context of the complementary protection test may be found in paras.93 and 94 of its reasons. Those reasons leave no room to doubt that it understood that the tests were different or that it applied the correct test to the complementary protection aspect of the applicant’s apostasy claims.
On that basis, this proposed allegation has no reasonable prospects of success.
Ground 11
In the eleventh ground of the proposed application the applicant would allege:
11.The non-disclosure of the relevant documents subject to a certificate issued under section 473GB of the Migration Act (Cth), gave rise to a practical injustice.
The proposed allegation refers to the fact that the Minister issued to the IAA a certificate under s.473GB of the Act in relation to a document examination report in which the following opinion was expressed:
It is my opinion that the quality of security limits the ability to determine whether this is a legitimately manufactured document. The result is inconclusive.
There seems to have been no issue that the applicant had not been informed by the IAA that the certificate had been issued and that it was accompanied by the document examination report.
Section 473GB of the Act provides:
473GB Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a)the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a)must notify the Authority in writing that this section applies in relation to the document or information; and
(b)may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a)may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b)may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4)If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5)The Minister may issue a written certificate for the purposes of subsection (1).
No attempt was made to point to evidence that the certificate had been issued incorrectly and that there was a realistic possibility that the IAA’s decision could have been different if the notification had been disclosed and the applicant given a full opportunity to make submissions: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445-446 [49]. Nor was it suggested that the certificate had been issued correctly and the applicant had been denied an opportunity to make submissions in relation to it, which denial had been material to the IAA’s decision: SZMTA at 443 [38].
Further, it was not argued that the indeterminate conclusion expressed in the document examination report had been potentially contrary to the interests of the applicant and that the IAA had taken that information into account in making its decision, both necessary preconditions to finding a material denial of procedural fairness under the largely analogous terms of s.438 of the Act: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [19]. It was also not argued that any submissions that the applicant might have made to the IAA consequent upon being told of the certificate and report could realistically have resulted in the IAA making a different decision: MZAPC at [18].
Quite apart from these fatal shortcomings in the presentation of this proposed allegation, the proposed ground is, in any event, not arguable. Procedural fairness did not oblige the IAA to disclose to the applicant the fact of notification under s.473GB(2)(a): BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1094 [2].
LEAVE TO APPLY OUT OF TIME
On 15 March 2021 the applicant was given leave to file an application in a case to amend his application by 12 April 2021. A similar order had been made on 30 January 2020 for such an application to be filed by 13 February 2020. The present application was made before an application in a case to amend was accepted for filing and was made late. The Minister argued that a satisfactory explanation for the delay had not been given.
In the circumstance it is not necessary to decide that question but, if it were, I would not have been as concerned with the explanation for delay as with the fact that the matter does not presently have a hearing date. In those circumstances the delay is of no material significance and so it would be inappropriate to refuse leave to amend because of that delay if the proposed amendment was sufficiently meritorious.
HABEAS CORPUS
The applicant made detailed submissions on the availability of writs of habeas corpus in this Court. Again, in the circumstances, it has not been necessary to consider this question which, in any event, appears to be settled: s.476 of the Act; s.15 of the FCCA Act; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 355 ALR 405.
PROPOSED STATEMENT OF CLAIM
Exhibit A2 was a statement of claim that the applicant had unsuccessfully sought to file and upon which he wished to rely. It was an anomalous document because it named a second respondent who was not named in the proposed amended application. It was also largely redundant as its contents did little more than repeat allegations advanced in the proposed amended application or elaborate on the factual allegations made in that document.
The one principal difference between the proposed statement of claim and the proposed amended application concerned the final ground of the former which read:
Tortious injury loss and damage
4.By reason of the unlawful detention of the applicant by the respondents, the applicant has suffered injury, loss and damage on an aggravated and exemplary basis, including but not limited to the following.
Particulars
a)Pain and suffering.
b)Suicidal attempts and ideation and thoughts of self harm.
c)Nervous shock disorders, traumatic stress disorders and major depressive and anxiety disorders and anger disorders.
d)Severe migraines and headaches.
e)Amnesia and loss of memory and reduced capacity to concentrate.
t)Sleep disturbances and nightmares.
g)Loss of self-esteem and confidence and general feelings of uselessness.
h)Social withdrawal and isolation.
i)Exposure to psychological and physical trauma whilst detained.
j)Economic loss, current and future earnings.
For the reasons already given I am not persuaded that the allegations the applicant wishes to make to the effect that his detention upon entering Australia by sea at Christmas Island was unlawful have reasonable prospects of success.
However, the allegation proposed by the statement of claim appears to be wider than that and may involve an allegation that the applicant was detained on the water before he entered Australia by sea at Christmas Island. It might be noted in that connection that although grounds 2 and 3 of the proposed amended application refer to the applicant’s detention having commenced at sea, those grounds are misconceived and misunderstand the mechanism by which an unlawful non-citizen might be a an OEP or a UMA, with the consequence that the fact and lawfulness of any detention of the applicant at sea is irrelevant to the issues that would be raised by the proposed amended application and so unnecessary to determine in the context of that application.
In any event, whether the proposed statement of claim does involve an allegation that the applicant was detained on the water before he entered Australia by sea at Christmas Island is far from clear and, regardless of the document’s other shortcomings, absent such clarity leave to file it would not be granted.
SUBPOENA FOR PRODUCTION
The proposed amended application would seek the following interlocutory relief:
1.Relief in the nature of an Interlocutory Order directing the Minister to produce the “communications, documents and information” as per the subpoena to produce filed 4 March 2021, including the following.
The Minister submitted that the subpoena sought production of material “that has no bearing on any live issue in the proceedings”.
The proper course to take in relation to the subpoena is for any objections and related arguments to be pursued in the context of the subpoena and its return date rather than in the present interlocutory proceeding. In any event no substantive argument was made in support of the prayer in question. It need not be considered further.
APPLICATION FOR SUMMARY DISMISSAL
Were the application to amend to have been granted, it would have completely replaced the originating application. On that basis, the Minister has submitted:
As the applicant has abandoned reliance on the grounds of review pleaded in his Original Application (which, in any event, have no merit for the reasons given by the Minister in his submissions dated 8 March 2021), the proceedings should be dismissed.
As the proposed amendment is not to be granted, the process initiating this proceeding remains the application before the Court. If the Minister wishes its summary dismissal he should file an application in a case seeking that order.
CONCLUSION
The applicant has not demonstrated that the proposed amended application has reasonable prospects of success. Consequently the application to amend will be dismissed. Leave to file the proposed statement of claim will also be refused. So also will be the Minister’s informal application for summary dismissal based on the asserted inadequacies of the extant application.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 2 July 2021
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