EIB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 5) - [2020] FCCA 1189

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIB19 v MINISTER FOR IMMIGRATION & ANOR (No.5)

[2020] FCCA 1189

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the applicant was not an “unauthorised maritime arrival” as defined by s 5AA of the Migration Act 1958 (Cth) – whether the appointment of a port as a proclaimed port at Christmas Island is invalid – no jurisdictional error made out – amended application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.4

Acts Interpretation Amendment Act 1976 (Cth), s.3

Migration Act 1958 (Cth), ss.5, 5AA, 36, 473CB, 473CC, 473

Migration Amendment Act (No.2) 1980 (Cth), ss.3, 4, 12, 13

Cases cited:

AKJ18 v Minister for Immigration & Anor [2020] FCCA 3

CWW18 & Ors v Minister for Immigration & Anor [2020] FCCA 26

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178

FFZ18 v Minister for Immigration & Anor [2020] FCCA 1

GGD18 & Ors v Minister for Home Affairs & Anor (No.3) [2019] FCCA 444

GGD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463

Applicant:

EIB19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2835 of 2019

Judgment of:

Judge Street

Hearing date:

5 May 2020

Date of Last Submission:

5 May 2020

Delivered at:

Sydney

Delivered on:

5 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr J Williams via Microsoft Teams

Solicitors for the Applicant:

Barriston Lawyers

Counsel for the Respondents:

Mr T Reilly via Microsoft Teams

Solicitors for the Respondents:

Mills Oakley

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 5 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2835 of 2019

EIB19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 3 October 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen or Iran and his claims were assessed against that country. The applicant was found to be a Shia Muslim Arab from a particular location.
The applicant applied for a Safe Haven Enterprise visa. The applicant claimed to fear harm from the authorities, that he will be alleged to be an Al Ahvazi separatist, a political activist and will be tortured and killed. The applicant also claimed to fear harm on the basis of being accused of being an alleged traitor who fled Iran to seek asylum.
On 3 September 2019, the Delegate found that the applicant failed to meet the criteria for the grant of the Safe Haven Enterprise visa.
On 10 September 2019, the Authority wrote to the applicant explaining that his application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction, providing the applicant an opportunity to put on new information and submissions. The applicant put on submissions dated 30 September 2019 that were expressly taken into account by the Authority in its reasons.
The Authority in its reasons identified the background to the application for review. The Authority had regard to the material provided by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims. The Authority identified the relevant law, including a paginated annexure of the applicable law to its reasons.
The Authority did not accept that the applicant was a member of any political or other group, distributed pamphlets, raised an Arab flag or was involved in any meetings or political activity or has any political interest. The Authority did not accept that the Iranian authorities visited the applicant’s parents looking for him or that the applicant was or will be of any interest upon return. The Authority did not accept that the applicant will be accused or perceived as a traitor, political activist or separatist or acting against national security of political activity.
The Authority was not satisfied that the applicant faces a real chance of serious harm on the basis of his ethnicity, as an Ahvazi Arab, his background and/or as a minority or for the claimed reasons.
The Authority found that the applicant departed Iran legally on his own passport but accepted that he may be identified as a failed asylum-seeker upon his return to Iran. The Authority found the chance the applicant will face harm on account of being a failed asylum-seeker returning from a western country to be remote and not real.
The Authority did not accept that the applicant faces a real chance of harm on return to Iran on the basis of his ethnicity, background, experiences, personal circumstances, race, political opinion or imputed political opinion or as a returnee or failed asylum-seeker having lived in a western country or by reason of his brother.
The Authority, having considered the applicant’s claims and taking into account country information, was not satisfied that there is a real chance of the applicant suffering persecution in the reasonably foreseeable future for any of the reasons claimed.
The Authority found that the applicant did’ not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.
The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iran from Australia, there is a real risk the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.
Accordingly, the Authority affirmed the decision under review.

Ground in the Amended Application

The ground in the amended application is as follows:
Ground 1: The respondents failed to follow procedures required by law
1. The decision by the IAA is vitiated by jurisdictional error as the applicant was not an “unauthorised maritime arrival” (UMA) as defined by section 5AA of the Migration Act 1958 (Cth) and therefore was not “fast track applicant” as defined by section 5 of the Migration Act 1958 (Cth). As a consequence, the applicant was not notified of the decision made by the delegate to Minister on 3 October 2019 pursuant to section 66 of the Migration Act 1958 (Cth).
Particulars
a) In 2013, the applicant departed Iran by plane and arrived in Indonesia. Shortly after, the applicant left Indonesia for Australia by boat and was intercepted by a vessel belonging to the Australian Navy or the Australian Border Force.
b) The applicant was first detained on board a vessel belonging to the Commonwealth of Australia, carrying the flag of the Commonwealth of Australia, which is registered to Canberra, as the Australian Capital Territory (ACT) of the Commonwealth of Australia.
c) At the relevant time that the boat was intercepted, neither the vessel belonging to the Commonwealth of Australia or the ACT were excised offshore places as defined by section 5 of the Migration Act 1958 (Cth).
d) On 4 July 2013, the applicant was taken to Christmas Island.
e) The port on Christmas Island was declared 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 of a port as a proclaimed port, in respect of an area of waters within the Territory of Christmas Island, by notice published in the Commonwealth of Australia Gazette on 22 January 1981, is invalid.
f) The IAA observed as follows.
I. The applicant is a Shia Muslim Arab from Ahwaz, Iran who arrived in Australia by boat on 4 July 2013.
2. On 27 April 2017 the applicant applied for a safe haven enterprise visa.
3. His claims revolved around discrimination for his Arab ethnicity and membership and activity in an Arab political group. He fears he will be accused as an Arab political activist, Al Ahvazi separatist and acting against a national security and be persecuted.
4. On 4 September 2019 the delegate refused to grant the visa because he was not satisfied that the applicant was a refugee or that there was a real risk of significant harm if returned to Iran.
g) The applicant was not a “UMA” and was not a fast track reviewable person. As a consequence, the applicant was not notified of the decision by the IAA.
The ground in the amended application is one in respect of which it, in substance, seeks to re-agitate the same issues that were the subject of an adverse determination by this Court in GGD18 & Ors v Minister for Home Affairs & Anor (No.3) [2019] FCCA 444 (“GGD18”).
Mr Williams of counsel on behalf of the applicant accepted that this Court is likely to follow its own earlier decision in respect of the arguments advanced in respect of the one ground in the amended application. That was a proper basis for Mr Williams to take in circumstances where there is, in substance, no reason for the Court to revisit or depart from the reasons it adopted in GGD18. That course by Mr Williams properly preserves his client’s rights in relation to ground 1 in the amended application that was the subject of a grant of leave by orders made in chambers on 22 April 2020 and which orders also dispensed with the need for a show cause hearing.
Mr Williams has provided extensive submissions as to why the Court should permit the issues to be re-agitated and why this Court should regard its decision in the earlier case as wrong. The Court is not persuaded by any of those submissions that its earlier decision is the subject of error.
Mr Williams also relies upon arguments concerning public international law and alleged illegal or unlawful detention. The submissions range far and wide but do not identify any proper new basis upon which this Court should depart from its reasoning that was identified in GGD18.
Evidence has been adduced by the first respondent by way of the affidavit of Ms Connelly affirmed 21 April 2020 identifying that the applicant arrived at Flying Fish Cove at Christmas Island on 4 July 2013 at which time he was placed in immigration detention by an officer of the Department of Immigration and Citizenship pursuant to s 189(3) of the Act. It is also apparent that the applicant underwent biometric assessment on 14 July 2013 while he was at the Christmas Island Detention Centre.
The Court treats the notification requirement of ports, upon which Mr Williams’ arguments, in part, rely, as being the subject of judicial notice and treats the same as being before the Court for the purpose of Mr Williams’ arguments.
A notice of a constitutional matter was filed on 23 April 2020 on behalf of the applicant but that related to a ground which this Court has declined to permit Mr Williams to rely upon.
In relation to ground 1, Mr Williams candidly identified the numerous decisions adverse to the argument that he was seeking to advance, including this Court’s decision.
Mr Williams contended that the decision of the Authority is the subject of error because the applicant was not an unauthorised maritime arrival or a fast track review applicant as defined by s 5 of the Act and that, accordingly, the decision made by the Authority was beyond power.
The first particular appears to concern the validity of a notice of detention issued, the subject matter of which is not part of the decision before this Court. It is difficult to comprehend how the matter identified in relation to the first particular relied upon by Mr Williams could possibly give rise to the notice being beyond power and invalid or in any way impact upon whether the applicant met the definition in s 5 of the Act.
The second particular appears to rely upon a consequence of a search and rescue operation by the relevant Australian authorities. Again, it is not apparent that any such activity gives rise to any reasoning why the Authority exceeded its statutory power in the conduct of the relevant review under pt 7AA of the Act or why the applicant was not an unauthorised maritime arrival within s 5AA of the Act.
The third particular refers to events in relation to the navy warship and that the navy warship and the ACT were not excised offshore places as defined by s 5 of the Act. The propositions advanced do not identify any proper basis upon which it could be said the applicant was not an unauthorised maritime arrival within s 5AA of the Act.
The fifth particular relies on an argument in relation to the timing of the declaration as to Christmas Island being a port on 22 January 1981. The Court has treated that notice published in the Commonwealth Gazette on 22 January 1981 as being before the Court as a matter of judicial notice, whilst it was not formally tendered into evidence.
For the reasons given in GGD18 and, in particular, the application of s 4 of the Acts Interpretation Act 1901 (Cth), the alleged ground of invalidity is without substance.
The fifth particular also seeks to agitate the purported appointment of a port as a proclaimed port in the notice published in the Commonwealth Gazette on 22 January 1981. For the reasons already given, the Court is prepared to treat that notice as being before the Court and the subject of judicial notice.
Mr Williams, in this regard, relies upon what was said in the Full Court in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. Mr Williams submitted that the Western Lagoon was not a port and that the applicant failed to enter Australia because it was defined to mean enter the migration zone. Mr Williams also referred to what was said to be a drafting error in relation to the Western Lagoon being a port.
The Court does not regard these particulars as giving rise to any relevant error by the Authority in treating the applicant as an unauthorised maritime arrival in circumstances where the applicant arrived on Christmas Island, as identified by evidence of Ms Connelly, and in light of this Court’s decision in GGD18. Accordingly, none of the submissions advanced by Mr Williams make out any relevant error as alleged in the amended application.
The Court notes that the first respondent has identified that the ground pleaded was in identical terms to FFZ18 v Minister for Immigration & Anor [2020] FCCA 1, CWW18 & Ors v Minister for Immigration & Anor [2020] FCCA 26 and AKJ18 v Minister for Immigration & Anor [2020] FCCA 3 and that, for the reasons identified in these cases, the proposed ground must fail. The Court accepts the submission by the first respondent in that regard.
The Court accepts the first respondent’s submission that the argument concerning the unauthorised maritime arrival and to entering a migration zone as a validly appointed port is irrelevant, given that the application disembarked onto land on Christmas Island on 4 July 2013. The territory of Christmas Island was, at that date, an excised offshore place within s 5AA(1)(a)(i) of the Act, taking into account also the definitions of excised offshore place and excision time in s 5(1) of the Act. The applicant, accordingly, met the definition of unauthorised maritime arrival in ss 5AA(1)(a) and (2)(a) of the Act.
The applicant was, therefore, a fast track applicant within the definition in s 5(1) of the Act and the Authority’s decision was a fast track decision within s 5(1) of the Act and, accordingly, a fast track reviewable decision within s 473BB of the Act. It follows that the Authority had jurisdiction in respect of the review under s 473CC(1) in pt 7AA of the Act.
The Court also accepts the first respondent’s submission that the port was, in any event, validly appointed for the reasons given by this Court in GGD18, albeit the Court notes the matter went on appeal but the relevant ground in that regard does not appear to have been further pressed before Thawley J in GGD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463 (a special leave application was also refused).
The first respondent further submitted that the argument for invalidity relies upon the appointment of a port at Christmas Island on 22 January 1981 being made the day before the commencement of the empowering provision in s 3 of the Migration Amendment Act (No 2) 1980 (Cth). The first respondent submitted that this does not mean that the appointment was invalid, as the then s 4 of the Acts Interpretation Act 1901 (Cth) has the effect that the appointment was permitted and came into effect on the same day as the empowering provision, being 23 January 1981.
At the time of publication of the appointment of a port at Christmas Island in the Commonwealth Gazette on 22 January 1981, s 4 of the Acts Interpretation Act 1901 (Cth), which had been inserted via s 3(1) of the Acts Interpretation Amendment Act 1976 (Cth), relevantly provided as follows:
(1) Where an Act (in this section referred to as the Act concerned), being -
(a) an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or
(b) an Act enacted before the date of commencement of this section that did not come into operation on or before that date, is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.
(2) An appointment or instrument made by virtue of sub-section (1) or, in the case of such an instrument containing a number of provisions, each of those provisions, takes effect-
(a) on the day on which the Act concerned comes into operation; or
(b) on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment or instrument was made, whichever is the later.
The Court accepts that it was necessary to have the appointment in place at least when s 13 of the Migration Amendment Act (No 2) 1980 (Cth) commenced operation on 23 January 1981. That was because s 4 of the Migration Amendment Act (No 2) 1980 (Cth) extended the operation of the Act to the Territory of Christmas Island and s 13 of the Migration Amendment Act (No 2) 1980 (Cth) contemplated the possibility of an overseas vessel within the meaning of s 12 of the Migration Amendment Act (No 2) 1980 (Cth) being in port in the Territory of Christmas Island immediately before the commencement of that provision.
In the present case, the relevant empowering provision in 1981, being s 5(1A)(a) of the Act which was inserted by s 3(2) of the Migration Amendment Act (No 2) 1980 (Cth), did not come into operation immediately upon its enactment and was expressed to confer power to appoint a port in the Territory of Christmas Island and, thus, was an enactment of the type contemplated by the then s 4(1)(a) of the Acts Interpretation Act 1901 (Cth).
By reason of s 4(2) of the Acts Interpretation Act 1901 (Cth), the appointment took effect on the day on which s 3(2) of the Migration Amendment Act (No 2) 1980 (Cth) came into operation. That is to say, the appointment took effect on from 23 January 1981, not on 22 January 1981.

The instrument that relevantly operates to appoint a proclaimed port at Christmas Island under the Act is the notice dated 22 August 1994, as published in the Commonwealth Gazette on 31 August 1994 which, for the reasons the Court has already given, the Court regards as being before the Court and the subject of judicial notice.
In these circumstances the arguments concerning the 1981 appointment of the proclaimed port cannot provide a basis for the granting of relief in the present case.
Accordingly, no jurisdictional error as alleged in ground 1 is made out.
Accordingly, the amended application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 19 May 2020