FBW17 v Minister for Immigration

[2018] FCCA 2790

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBW17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2790

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority failed to consider an integer of the applicant’s claims – jurisdictional error made out – amended application allowed.  

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: FBW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3570 of 2017

Judgment of: Judge Street

Hearing date: 26 September 2018

Date of Last Submission: 26 September 2018

Delivered at: Sydney

Delivered on: 26 September 2018

REPRESENTATION

Counsel for the Applicant: Ms T Baw

Solicitors for the Applicant: Lander & Rogers Lawyers

Counsel for the Respondents: Ms N Laing

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 3 August 2018.

2. An order in the nature of certiorari is issued calling up the record of the Immigration Assessment Authority and quashing the decision made on 17 October 2017.

3. An order in the nature of mandamus is issued requiring the Immigration Assessment Authority to determine the review application before it according to law.

4. The first respondent pay the applicant’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3570 of 2017

FBW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. 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”) under Part 7AA of the Act made on 17 October 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka in his claims were against that country. The applicant was found to be a Tamil Hindu from Trincomalee in the Eastern Province of Sri Lanka. The applicant departed Sri Lanka illegally on 2 November 2012 and arrived on Christmas Island on 20 November 2012. On 1 September 2017, the delegate refused to grant the applicant a Safe Haven Enterprise visa.

The Authority

1. The Authority wrote to the applicant on 7 September 2017, identifying that the application of the visa had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could accept new information and provided the applicant an attached fact sheet and practice direction giving the applicant the opportunity to put on submissions and new information.

2. The applicant provided a statement to the delegate dated 11 December 2015. The statement identified an incident that occurred in July 2012, which was described as the first time there was an attempt by the applicant and his brother to leave Trincomalee. In that regard, it is alleged that police found an ID card, came to the parents’ house, arrested the applicant and a different brother, and the applicant and the different brother were released on the payment of some money. The applicant refers to the next time the applicant attempted leave was two months later, but there was engine problems with the boat and they had to turn back. The applicant claimed to fear harm from the authorities. In relation to why the applicant is at risk from the authorities, the applicant has said:

   There is an outstanding arrest warrant for my brother. Where ever I register to live they will discover I am his brother and will arrest me as well.

3. The relevant brother in that regard, on a fair reading of the applicant’s statement, was the brother S. The brother S also provided a statement in support of the applicant. The submissions were provided on behalf of the applicant and his brother which referred to both brothers being detained and charged with attempting to illegally depart from the country, and while being out on bail they had departed illegally and that they have an outstanding Court warrant against them.

The grounds

1. The grounds in the amended application are as follows:

   1. The Second Respondent failed to complete its exercise of jurisdiction by:

   a. failing to consider a claim by the Applicant to the effect that, as there is an outstanding warrant for his brother FBV17's arrest, he will become known to the authorities by association and also be arrested; and

   b. failing to consider an issue which clearly arose on the information before it, that the appellant had an adverse profile by his association with his brother FBV17 and would be of interest to the authorities for that reason.

   Particulars

   i. At paragraph 49 of its decision, the Second Respondent accepted that the Applicant left Sri Lanka in breach of the Immigrants and Emigrants Act 1949 (I&E Act)

   ii. At paragraph 49 of its decision, the Second Respondent accepted that if the Applicant returned there was a real chance that he would be charged and fined under the I&E Act.

   iii. At paragraph 38 of the Applicant's witness statements submitted with their

   SHEV application, the Applicant stated that "Wherever I am I am at risk of the authorities finding me. There is an outstanding arrest warrant for my brother".

   iv. The Second Respondent failed to consider that the Applicant’s brother had an outstanding arrest warrant against him for breaching bail by absconding from Sri Lanka.

   v. The Applicant’s grounds refer to and rely on Ground 1 of the Applicant’s brother FBV17’s application.

   vi. A copy of the Second Respondent’s decision is provided as an annexure to the Affidavit in support of this Amended Application sworn by Aaron Jon Goonrey on 3 August 2018 and filed with this Amended Application.

2. Ms Baw of counsel on behalf of the applicant submitted that the Authority had not engaged with the material integer of the applicant’s claimed fear of harm and with the outstanding arrest warrant in respect of his brother S. Ms Baw took the Court through the reasons of the Authority, and whilst the Authority referred to the brother S, reading the Authority’s reasons as a whole and on a fair reading, there is no attention given by the Authority to the applicant’s claimed fear of harm in respect of the outstanding arrest warrant in respect of his brother S. The Authority did engage with part of the applicant’s claims and expressed a view that the Authority was satisfied the applicant is not of interest to the authorities arising from his first attempt of departure.

3. This was a case where the applicant’s claimed fear was referring to the outstanding warrant in respect of his brother. The finding by the Authority that the applicant is not subject to any Court order or arrest warrants, and that he will not appear on a stop list at the airport, is not dispositive of the applicant’s claims. The reference to the applicant not having an adverse profile with the Sri Lankan authorities in the absence of dealing with the applicant’s claimed fear of harm arising from the outstanding arrest warrant in respect of his brother is also not dispositive of the integer of the applicant’s claims.

4. The first respondent submitted that, when referring to paragraph 31 of the Authority’s reasons and the profile of individuals who attract adverse attention and be at a risk of persecution or serious harm, do not expressly refer to a family member. The reference to the United Kingdom Home Office report in that regard does not provide an adequate explanation, in circumstances where the applicant has squarely raised a claimed fear in respect of his brother S and the outstanding warrant, not to address the same in the Authority’s reasons.

5. The Authority refers to the application of the Immigrants and Emigrants Act 1948 (Sri Lanka) and refers to the July 2012 attempt at departure by both brothers and found that it was not satisfied that the authorities came to arrest the boys and did not accept the boys were arrested and was prepared to accept that the parents went to the police station to pay moneys to secure the boys’ release. The Authority then referred to being satisfied that this was nothing other than a bribe and did not accept the applicant is of any adverse interest to the authorities arising from his first attempt to depart. That is not a finding addressing the applicant’s integer.

6. The finding then made by the Authority that the Authority is not satisfied the applicant is of any interest to the Sri Lankan authorities arising from this departure attempt does not address a integer of the claim advanced by the applicant in the present case in respect of the applicant’s brother’s outstanding warrant. Ms Baw sought to have admitted into evidence an affidavit that annexed the decision of the Authority in the applicant’s brother’s case in support of the alleged jurisdictional error and the Court admitted the decision subject to relevance. An objection was taken to the admission into evidence of the same.

7. In the context and the circumstance of the present case, the Authority in its reasons referred to the fact that the applicant, brother S, and three other extended members making current combined Safe Haven Enterprise visa applications, although they have made separate claims. The Authority noted the details of those claims being included in the applicant’s review material.

8. The Authority referred to the applicant’s Auntie’s claims and that they do not relate to the applicant, but many of S’s claims referred to the same situations and events that the applicant describes. The Authority referred to having considered S’s claims in the context where they can add to or explain the applicant’s claims, but not having drawn any adverse inference as to the applicant’s credibility from this material, given the materiality of the applicant’s claimed fear to fear harm.

9. In the present case, the reference to consideration of S’s claims is not an adequate disposition of the whole of the integers of the applicant’s claim in respect of the brother’s outstanding warrant. Further, the reference to incorporating S’s claims in those circumstances do, in my opinion, make the reasons delivered in the brother S’s case relevant and admissible in respect of the alleged failure by the Authority to properly conduct the review required under Part 7AA of the Act. In that regard, the Authority in those separate reasons for the brother S identified that there was a second attempt by the brother S to leave Sri Lanka in August 2012 and the boat was intercepted by the Sri Lankan Navy and the applicant was taken to the Sri Lankan Navy. The Authority in that case, for the brother S, constituted by the same person, identified that the Authority appeared to accept that S was detained and brought before the Court and was prepared to accept that an arrest warrant may have been issued for him.

10. I regard the affidavit and decision of the Authority in respect of the brother S as being admissible in the circumstance of the present case to support the alleged failure by the Authority to properly exercise its jurisdiction under Part 7AA of the Act. In answer to the Minister’s submission that the findings in the applicant’s case were dispositive of the applicant’s claim, it is admissible because I find the Authority expressly incorporated the same through its reasons. In circumstances of the present case, given the identical decision-maker on behalf of the Authority, it is open to the applicant to rely upon the context of that decision in support of the alleged failure to properly exercise the jurisdiction invested in the Authority under Part 7AA of the Act. There was a constitutional failure by the Authority to carry out the review required under Part 7AA of the Act by reason of the failure to make a dispositive finding in respect of an integer of the applicant’s claim regarding the outstanding warrant for the brother S.

11. The Court is satisfied that jurisdictional error as alleged in ground 1 of the amended application is made out.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 October 2018