EUF18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1285

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EUF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1285   

File number(s):

MLG 2826 of 2017

Judgment of:

JUDGE MANSINI

Date of judgment:

26 November 2024

Catchwords:

MIGRATION – Safe Have Enterprise visa – application for judicial review of decision of the then Immigration Assessment Authority – where the Authority constructively failed to exercise its jurisdiction to determine if the Applicants met the criteria as members of the same family unit of a non-citizen who met the criterion at s.36(2)(a) and/or (aa) – application allowed with costs

Legislation:

Migration Act 1958 (Cth) ss. 36, 474, 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 1.07, 11.07, 11.08

Cases cited:

BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443

Craig v South Australia [1995] HCA 58

Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476

Division:

Division 2 General Federal Law

Number of paragraphs:

29

Date of hearing:

13 August 2024

Place:

Melbourne

Counsel for the Applicants:

Mr Hughan

Solicitor for the Applicants:

AUM Lawyers

Counsel for the Respondents:

Ms Cameron

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

MLG 2826 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EUF18

First Applicant

EUG18

Second Applicant

EUH18
Third Applicant

EUI18
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	26 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the Second Respondent be amended in the title of the proceeding to Administrative Review Tribunal.

2.Pursuant to r.1.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the necessity for and requirement to start and continue a proceeding by appointment of a litigation guardian in accordance with rr.11.07 and 11.08 be dispensed with in relation to the Fourth Applicant (EUI18).

3.A writ of certiorari issue quashing the Immigration Assessment Authority decision made on 20 November 2017 in Case Numbers IAA17/02417, 02418 and 02420 and 02421.

4.A writ of mandamus issue requiring the Administrative Review Tribunal to reconsider and determine the Applicants’ application for review according to law.

5.The First Respondent pay the Applicants’ costs in an amount to be agreed.

6.Liberty to apply in relation to costs.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Mansini 

IN SUMMARY

1. Before the Court is an application for review of an administrative decision to affirm an earlier decision to refuse the 4 applicants a protection visa. 

2. The applicants are citizens of Sri Lanka who sought protection from Australia for themselves as dependents of their father and mother. Their parents were separately refused protection visas which decisions were affirmed on review. The present application relates to the request of the 4 children for judicial review of that further administrative decision to affirm the visa refusal decision.

3. For the reasons that follow, jurisdictional error is established and the application is allowed with costs.

   CONTEXT

4. The applicants are citizens of Sri Lanka, respectively 30, 26, 25 and 22 years of age.

5. On 23 April 2013, the applicant children arrived in Australia with their father and mother (together, the Applicants) as an unauthorised maritime arrival. The family will be referred to by pseudonym: the applicant FPR17 is the father and FQT17 is the mother of the children EUF18, EUG18, EUH18 and EUI18.

6. On 28 April 2013, a delegate of the Minister conducted interviews with FPR17 (and his wife FQT17 and child EUF18).

7. On 9 December 2016, FPR17 on behalf of his family applied for a combined safe haven enterprise (subclass 790) visa. In summary, FPR17 claimed to fear harm from unknown men demanding money from him and claims to fear threats to his family - and his wife FQT17 and their children sought to rely on the criterion at s.36(2)(b) of the Migration Act 1958 (Cth) (the Act) as family members of the same unit.  

8. On 5 April 2017, by 2 separate decisions of a delegate of the First Respondent, the primary applicant FPR17 (in the first decision) and FQT17 (in the second decision) and their children as dependents were refused protection visas.

9. On 11 April 2017, the delegate refusal decisions were referred to the then Immigration Assessment Authority (the Authority or the Second Respondent) for review.

10. On 15 May 2017, FPR17’s agent forwarded submissions and an unsigned statutory declaration of FPR17 to the Authority (a signed statutory declaration was subsequently provided, on 18 May 2017).

11. On 31 May 2017, the Authority was provided with submissions and statutory declarations by 3 of the Applicants (EUG18, EUH18 and EUF18), sworn on 30 May 2017 and 31 May 2017 respectively, which purported to corroborate some new information provided by FQT17. In summary, the daughters gave evidence about their experiences and observations of their mother being unwell and of changes to her demeanour. One daughter gave evidence of her grandmother having informed her of FQT17’s attempted suicide which she did not disclose to other family members.

12. Also on 31 May 2017, in the course of her application for review of the delegate’s decision, FQT17’s agent provided a submission and a statutory declaration of FQT17 dated 30 May 2017 to the Authority.

13. On 20 November 2017, by 3 separate decisions of the Authority, the decisions to refuse the Applicants protection visas were affirmed. It is the Authority’s decision in relation to the EUF18 and others that is subject of these proceedings (the Reasons).

    APPLICATION BEFORE THE COURT

14. On 21 December 2017, an originating application for judicial review of the Authority’s decision in relation to the 4 subject applicant children along with a supporting affidavit were accepted for filing. 

15. On 13 September 2018, a response was filed on behalf of the First Respondent which contended that the decision of the Authority was not affected by jurisdictional error.

16. Various procedural orders were then made.

17. On 5 August 2024, an amended application and an outline of submissions in support were accepted for filing. The amended application identified 2 grounds of review in the following terms:

    1.The Second Respondent (the IAA) erred in the exercise of its jurisdiction to review the decision of a delegate of the First Respondent (the Minister) by misunderstanding and/or misapplying what constitutes “credible personal information” pursuant to s 473DD(b)(ii) of the Act.

    2.The IAA failed to exercise its jurisdiction to determine if the Applicants met the criteria under s 36(2)(b)(i) &/or s 36(2)(c)(i) of the Act, as being members of the same family unit of a non-citizen who is mentioned in s 36(2)(a) &/or s 36(2)(aa) of the Act.

    Particulars

    (a) Prior to determining the applications for protection visas made by the First to Fourth Applicants, the IAA had determined the applications of the Applicants’ parents (father, known as FPR17 & mother, FQT17, hereinafter “the parents”).

    (b) In respect of both of the parents the IAA decided to affirm the decision of a delegate of the Minister not to grant them protection visas.

    (c) For the reasons set out in the Amended Applications made by the parents (refer MLG2800/2017 and MLG2801/2017), the IAA failed to exercise the jurisdiction and/or erred in the exercise of its jurisdiction to review the decisions of the delegate of the Minster in respect of the parents’ applications referred to it.

    (d) As a consequence of the failure to exercise the jurisdiction to review the delegate’s decisions in respect of the parents, the IAA constructively failed to consider whether the First to Fourth Applicants satisfied the criteria under s 36(2)(b)(i) &/or s 36(2)(c)(i) of the Act.

    (sic.)

18. On 9 August 2024, the First Respondent lodged an outline of written submissions in response. A joint list of authorities was also filed by the First Respondent.

19. The present application proceeded to final hearing before the Court as presently constituted on 13 August 2024. It was heard concurrent with the applications of the applicant childrens’ father (FPR17) and mother (FQT17). The parties were respectively represented by Counsel.

    STATUTORY FRAMEWORK

20. A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476 (Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [76].

21. The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considered ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 (Kelly J) at [19]-[20].

22. The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria 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.

23. By s.36(2)(b), a non-citizen in Australia who is a member of the same family unit as a non-citizen that meets the criterion at ss.36(2)(a) or (aa) will also meet the statutory criterion for the grant of a protection visa.

24. An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.

    SECOND GROUND

25. The second ground of judicial review is concerned with the Authority’s decision in respect of whether the subject Applicants met the criterion for a protection visa on account of their being a member of the same family unit as a person who met the criterion at ss.36(2)(a) and/or (aa): [1] and [2] of page 23 of the Reasons.

26. There was no question that EUF18, EUG18, EUH18 and EUI18 were members of the same family unit as their mother FQT17.

27. For the reasons given in FQT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1280, the Authority’s decision in the related application of FQT17 was affected by jurisdictional error. Accordingly, it was not contentious (and the First Respondent accepted) that the Authority constructively failed to exercise its jurisdiction to determine if EUF18, EUG18, EUH18 and EUI18 met the criteria at ss.36(2)(b)(i) and/or (ii) on account of being a member of the same family unit for purposes of ss.36(2)(a) and/or (aa).

28. Ground 2 therefore succeeds. In light of this conclusion, it is unnecessary to determine the remaining ground and I decline to do so.

    CONCLUSION

29. For the above reasons, the application is allowed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       26 November 2024

SCHEDULE OF PARTIES

MLG2826 of 2017
Applicants
First Applicant:	EUF18
Second Applicant:	EUG18
Third Applicant:	EUH18
Fourth Applicant:	EUI18