FPR17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1282
•26 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FPR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1282
File number(s): MLG 2800 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 – whether the Authority was legally unreasonable in its findings of inconsistencies between evidence of the Applicant and his spouse – 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, 65, 473EA, 474, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Craig v South Australia [1995] HCA 58
Minister for Immigration and Border Protection v SZVFW [2018] 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 13 August 2024 Place: Melbourne Counsel for the Applicant: Mr Hughan Solicitor for the Applicant: AUM Lawyers Counsel for the Respondents: Ms Cameron Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2800 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FPR17
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.A writ of certiorari issue quashing the Immigration Assessment Authority decision made on 20 November 2017 in Case Number IAA17/02416.
3.A writ of mandamus issue requiring the Administrative Review Tribunal to reconsider and determine the Applicant’s application for review according to law.
4.The First Respondent pay the Applicant’s costs in an amount to be agreed.
5.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
Before the Court is an application for review of an administrative decision to affirm an earlier decision to refuse the applicant a protection visa.
The applicant is a citizen of Sri Lanka who sought protection from Australia for himself as well as his named dependents (his wife and four children). The applicant was refused a visa which decision was affirmed on review. The present application relates to the primary applicant’s request for judicial review of that further administrative decision to affirm the visa refusal decision.
For the reasons that follow, jurisdictional error is established and the application is allowed with costs.
CONTEXT
The primary applicant is a 57 year old citizen of Sri Lanka.
On or around 23 April 2013, the applicant arrived in Australia with his 5 family members (together, the Applicants) as an unauthorised maritime arrival. The family will be referred to by pseudonym: the applicant FPR17 is husband of FQT17 and they are the father and mother of the children EUF18, EUG18, EUH18 and EUI18.
On 28 April 2013, a delegate of the Minister conducted interviews with FPR17 (and his wife FQT17 & child EUF18).
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 of the Migration Act 1958 (Cth) (the Act) as family members of the same unit.
On 5 April 2017, by 2 separate decisions of a delegate of the First Respondent, the primary subject applicant FPR17 (in the first decision) and FQT17 (in the second decision) and their children as dependents were refused protection visas.
On 11 April 2017, the delegate refusal decisions were referred to the then Immigration Assessment Authority (the Authority or the Second Respondent) for review.
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).
On 31 May 2017, in the course of her application for review of the delegate’s decision, FQT17 provided a submission and a statutory declaration of FQT17 dated 30 May 2017 to the Authority.
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 FPR17 that is subject of these proceedings (the Reasons).
APPLICATION BEFORE THE COURT
On 21 December 2017, FPR17’s application for judicial review of the Authority’s decision along with a supporting affidavit were accepted for filing.
On 17 January 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.
Various procedural orders were then made.
On 5 August 2024, an amended application and an outline of written submissions in support were accepted for filing. The amended application identified 2 grounds for review in the following terms:
1. The decision of the Second Respondent (the IAA) to affirm the decision of a delegate of the First Respondent (the Minister) not to grant the Applicant a protection visa was legally unreasonable.
Particulars
(a) Part of the IAA’s reasoning for affirming the decision of the delegate was the inconsistencies between the Applicant’s evidence and a statutory declaration of the Applicant’s wife (FQT17) dated 7 December 2016 as to the timing of events set out in the declaration.
(b) In particular, the IAA relied on the declaration of FQT17 that she “first became aware of the threats made to [the] family in April 2013”.
(c) However, the reference to April 2013 in FQT17’s declaration was obviously a typographical error.
(d) In the full context of FQT17’s declaration it was not possible for the IAA acting reasonably to consider FQT17’s reference to the date of April 2013 as anything other than a typographical error.
(e) The context includes that immediately before the reference to April 2013, FQT17 adopted the statement of the Applicant which set out a different timeline.
(f) Further the events which FQT17 narrated in her declaration as occurring after FQT17 first became aware of the threats to her family could not have all occurred during the month of April 2013, because the timeframe of the events stretches for significantly longer than 30 days.
(g) In any event the evidence established unequivocally that on or about 10 April 2013 the Applicant, FQT17 and their children departed from Sri Lanka.
(h) In addition, the IAA recorded and acted on its understanding that in her declaration FQT17 “also stated that men on motorbikes approached her eldest daughter also in April 2013” (emphasis added). FQT17 never said this.
(i) Further, the IAA recorded that:
Given the family departed on 10 April 2013, I consider the wife’s evidence that a number of instances of harassment and intimidation towards the family occurred over a number of weeks in April to be at odds with the applicant’s evidence that these incidents occurred over a number of months since the beginning of the year. (emphasis added)
(j) Again, that was not FQT17’s evidence.
2. The IAA failed to exercise its jurisdiction to determine if the Applicant met the criteria under s 36(2)(b)(i) &/or s 36(2)(c)(i) of the Act, as being a member of the same family unit of a non-citizen covered by s 36(2)(a) or s 36(2)(aa) of the Act.
Particulars
(a) Also on 20 November 2017 the IAA determined the referred applications of the Applicant’s wife, FQT17 and their four children (EUF17, EUG17, EUH17 & EUI17).
(b) The IAA decided to affirm the decisions of a delegate of the Minister not to grant protection visas to the Applicant’s wife and children.
(c) For the reasons set out in the Amended Applications made by FQT17 (see MLG2801/2017) and by EUF17, EUG17, EUH17 & EUI17 (see MLG2826/2017), 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 these applications referred to it.
(d) As a consequence of the failures to exercise the jurisdiction to review the delegate’s decisions in respect of these applications, the IAA constructively failed to consider whether the Applicant satisfied the criteria under s 36(2)(b)(i) &/or s 36(2)(c)(i) of the Act.
(sic.)
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.
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 FPR17’s wife (FQT17) and children (EUF18 and others). The parties were respectively represented by Counsel.
STATUTORY FRAMEWORK
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].
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].
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.
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.
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.
Division 3 of Part 7AA of the Act (as in force at the relevant times) governed the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, included a decision to refuse to grant a protection visa to a “fast track applicant”.
By s.473EA of the Act, a decision of the Authority on Part 7AA review was required to be accompanied by a written statement which set out both “the decision” on review and “the reasons for the decision”.
FIRST GROUND
The first ground of judicial review was concerned with that part of the Authority’s reasons where it considered that the evidence of FPR17 was inconsistent in parts with that of his wife (FQT17), particularised as: FQT17’s reference to first having become aware of the threats made to the family in April 2013 was plainly a typographical error and it was unreasonable for the Authority to rely on this; it was unreasonable to act on the Authority’s (mis)understanding that FQT17’s evidence was men had approached her children on motorbikes in April 2013 because she did not say this; and it was unreasonable to consider that FQT17’s evidence was that a number of instances of harassment and intimidation had occurred over a number of weeks in April 2013 because that was not her evidence.
Applicable principles
It was uncontroversial that the Authority was obliged to review the referred decision subject to an implied condition that the duty be performed within the bounds of legal reasonableness: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) at [3].
“Legal unreasonableness” may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 (Li) (Hayne, Kiefel and Bell JJ) at [68] and [76]. Legal unreasonableness may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn”: Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464 (Gordon J) at [43]. However, the test has been described as “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] 264 CLR 541 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ) at [11]. It is not met where reasonable minds could have come to different conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) (Gummow ACJ, Heydon, Crennan, Kiefel and Bell JJ) at [130]-[131].
Was the Authority legally unreasonable in its finding of inconsistencies which led to adverse credibility findings?
The Authority made a series of findings of inconsistencies at [31] to [33] of the Reasons, where the Authority considered the timeline of events and incidents that featured in the evidence of FPR17 and his wife FQT17.
In summary:
(a)At [31], the Authority cited accounts from FPR17’s evidence which included inconsistencies within his own evidence - about when the alleged criminals first learned of his home address (February 2013) and commenced targeting him at home (December 2012).
(b)At [32], the Authority found there to be a “very different timeline of the events” the wife FQT17 had described in her evidence which in part contradicted that of FPR17, including: the timing of alleged harassment by unidentified men on motorbikes approaching his eldest daughter to question her on his whereabouts (FQT17 said it was April 2013, whereas FPR17 had said it was February 2013 as referenced at [31] of the Reasons).
(c)Also at [32], FQT17’s evidence of a series of events was summarised by the Authority in the following time sequence: as a result of an alleged harassment incident involving her children being followed and threatened with abduction if they did not disclose their father’s whereabouts, in April 2013, she kept her children home from school for a couple of weeks before their study resumed; the alleged motorbike harassment incident occurred a few days later, also in April 2013; 5 days afterwards, 5 men attended the family home and threw rocks and sought her husband; a further 5 days later, the men returned and forcibly entered their property, shot and killed their dog and threatened to kill her at gunpoint unless she disclosed her husband’s whereabouts; a further 5 days later the family commenced their departure from Sri Lanka.
(d)At [32] and [33], the Authority considered FQT17’s evidence during her visa interview including that she had limited knowledge of her husband’s activities and had not described the children’s threat of abduction on their way home from school. The Authority found that FQT17’s credibility as a corroborative source was undermined, and no weight was given to her statement as corroborating FPR17’s claims and in particular with respect to FPR17’s activities between December and April 2013, the extent the children were harassed on their travel to school, or the level of violence and harassment being directed towards FPR17’s family by the men extorting FPR17.
By his argument subject of this ground, FPR17 was understood to accept that his evidence was inconsistent with that of his wife FQT17 to the extent that she deposed in her statutory declaration of 7 December 2016 that she first became aware of threats made to her family in April 2013 – but nonetheless asked the Court to find the date was plainly a typographical error.
The evidence of FPR17 and FQT17 was inconsistent to the extent that FQT17 deposed that she first became aware of threats made to her family in April 2013 whereas FPR17 had deposed to incidents occurring over a longer period of time, between December 2012 and 8 April 2013. In circumstances where the evidence of FQT17 was quite specific as to time and dates and, at the very least sought to describe a series of incidents and events having occurred within a short period of time, I do not discern an obvious typographical error and the Authority’s reference to the incidents on the evidence of FQT17 having occurred over a number of weeks in April was a fair summary or characterisation of her evidence.
The Authority was required to appreciate the nature of its task and to perform it reasonably which required it to weigh the evidence before it and entitled it to make conclusions on the evidence including findings that differences in the evidence of FPR17 and FQT17 were relevant to FPR17’s credit and undermined his claims to fear harm. Relevantly, as the short summary above reveals, the Authority identified many differences and inconsistencies within the evidence of FPR17 as well as inconsistencies in the evidence of FPR17 when compared with that of FQT17.
On what is before the Court in the present case, I am not persuaded that the Authority’s findings of inconsistencies were legally unreasonable as to meet the high threshold on the established authorities.
SECOND GROUND
The second ground of judicial review is concerned with the Authority’s decision in respect of whether FPR17 met the criterion for a protection visa on account of being a member of the same family unit as a person who met the criterion at ss.36(2)(a) and/or (aa): [74] and [75] of page 23 of the Reasons.
There was no question that FPR17 was a member of the same family unit as his wife FQT17.
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 FPR17 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).
Ground 2 is therefore made out.
RESOLUTION
For the above reasons, the application is allowed with costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 26 November 2024
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