Martin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3627

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARTIN v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2020] FCCA 3627

Catchwords:
MIGRATION – INTERLOCUTORY APPLICATION – application to prevent removal – no prima facie case – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.34, 474, 501

Cases cited:

Love v The Commonwealth; Thoms v The Commonwealth [2020] HCA 3

Applicant: SHANE BARRY MARTIN

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 413 of 2020

Judgment of: Judge Emmett

Hearing date: 16 February 2020

Date of Last Submission: 16 February 2020

Delivered at: Sydney

Delivered on: 16 February 2020

REPRESENTATION

Solicitor for the Applicant: Mr Michael Aysche
(One Group Legal)

Solicitor for the Respondent: Ms Dale Watson
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 413 of 2020

SHANE BARRY MARTIN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. By oral application made tonight, 16 February 2020, at around 11:05pm, the applicant’s solicitor, Mr Michael Ayache, sought the following orders:

   i)That any steps taken to return the applicant to New Zealand be stayed pending further order.

   ii)That the respondent be given time to verify the authenticity of documents tendered by the applicant and marked Exhibit 1A.

   iii)Liberty to restore.

2. The applicant was not present at tonight’s hearing but was represented by his solicitor, Mr Ayache.  The respondent was represented by Ms Dale Watson, solicitor. 

3. The respondent opposed the applicant’s application essentially on the basis that the applicant was due to be removed at 7:30am tomorrow morning and that in the circumstances, the balance of convenience did not weigh in favour of the applicant irrespective of whether there was a prima facie case in circumstances where his application could and should have been made from New Zealand prior to his attempted entry into Australia.

4. The applicant and his solicitor arrived at the International airport in Sydney at approximately 4:50pm this afternoon, travelling from New Zealand via New Caledonia, having left New Zealand on Saturday 15 February 2020.

5. The respondent’s solicitor, Ms Watson, provided the following background information in respect of the applicant:

   a)Sometime in 2016, pursuant to s.501(3) of the Migration Act 1958 (Cth) (“the Act”), the applicant’s visa was cancelled as not being in the national interest.

   b)The applicant embarked on a revocation course in respect of that cancellation.

   c)Approximately two years ago, during the course of the revocation period, the applicant agreed to return to New Zealand.

   d)Pursuant to High Court authority in relation to the way in which the respondent may have relied on certain information, the respondent agreed that the cancellation be set aside by consent.

   e)The respondent told the court that the applicant was identified at the airport as “a behaviour concern non-citizen pursuant to s.34 of the Act” and was, therefore, unable to obtain a visa that persons from New Zealand are otherwise entitled to obtain.

6. The applicant presented at the airport today with his solicitor. In the absence of being granted a visa, the applicant purported to rely for entry into Australia on the recent decision of the High Court of Australia in Love v The Commonwealth; Thoms v The Commonwealth [2020] HCA 3 (“Love and Thoms”). The applicant’s solicitor referred to paragraph 81, per Bell J, in relation to the finding that Aboriginal Australians are not within s.51(xix) of the Constitution and also referred to paragraph 198, per Keane J, where he recognised the practical difficulty in relation to such persons presenting in Australia.

7. Bell J at 81 is as follows:

   “I am authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution. The difference with respect to Mr Love is a difference about proof, not principle”.

8. Keane J at 198 is as follows:

   “At the practical level, adoption of the plaintiffs' argument would replace the easy formality of a passport with a complex inquiry in every case where a person of Aboriginal descent who is a non-citizen seeks to enter or leave Australia”.

9. The respondent submits that the applicant cannot enter Australia without a visa or without satisfying the recent principles in Love and Thoms. I do not understand that to be a proposition with which the applicant disagrees. I am satisfied that the decision made at the airport is a migration decision and, accordingly, pursuant to s.474 of the Act, this Court has jurisdiction to entertain the applicant’s application.

10. The applicant’s solicitor tendered three documents stapled together and collectively marked exhibit 1A. Exhibit 1A comprised colour copies of three documents identified as follows: the first document being a Certificate Organisation Resolution in respect of the applicant, purporting to be issued by Aboriginal Corporation Tasmania on 1 December 2016 certifying as to his Aboriginality; the second document being titled Aboriginal Corporation Tasmania - Recognising Organisation Resolution, again in the name of the applicant and dated 1 December 2016; the third document being a document headed Aboriginal Corporation Tasmania Aboriginal Elders Statement in respect of the applicant as to his acceptance as an aboriginal person by the Manegin Aboriginal Community. I note there is no document from the Manegin Aboriginal Community or the Elders of that community. Each of the three documents was signed by Lance LeSage, director, and Peter Barnes, signatory.

11. The copies of the documents are in colour. They do not appear to be originals and were not tendered as such.

12. The applicant’s solicitor informed the Court that the Aboriginal Corporation Tasmania had delegated authority pursuant to legislative instruments. I asked the applicant’s solicitor what were those legislative instruments. The applicant’s solicitor responded that he was not aware what those legislative instruments are and had not made any inquiries as to what they may be or have any copies of what they may be. Nor was the applicant’s solicitor able to give the Court any other information about the status of the Aboriginal Corporation Tasmania in relation to its entitlement to determine Aboriginality.

13. The respondent submits that the applicant should return to New Zealand awaiting investigation of his claim of Aboriginality, such that under the principles espoused in Love and Thoms, he would be entitled to enter Australia and not be removed.

14. In opposing the orders sought by the applicant, the respondent submitted that the balance of convenience ought not to be weighed in favour of the applicant where the applicant simply turned up at the airport and demanded a right of entry.

15. The respondent’s solicitor further submitted that certification is but one of the matters to be taken into account in being satisfied of Aboriginality. Others include Indigenous descent and self-identification.

16. The applicant’s solicitor submitted that there were no systems or procedures in place and that the applicant was entitled to travel, accepting the law as it is. By that submission, I understood the applicant’s solicitor to be referring to the principles in relation to Love and Thoms. The applicant’s solicitor also informed the Court that the applicant has three sons who are certified as Aboriginal and who live in Australia, as well as his two step-daughters. However, there was no evidence to support the assertion made by the applicant’s solicitor.

17. The applicant’s solicitor also submitted that there was no prejudice to the respondent where the applicant consents to remain in detention pending the outcome of his application for entry into Australia.

18. The applicant is entitled to present evidence of his Indigenous descent and self-identification as well as the certification. The applicant chose not to do that before leaving New Zealand. There was nothing put to me to explain why it is that the applicant did not take any such step despite those enquiries being made by me to the applicant’s solicitor. Similarly, there was no evidence of any urgency or emergency that would require the applicant to take that step.

19. The applicant’s solicitor informed the Court that unspecified inquiries were made of Home Affairs and other authorities from New Zealand before they left. Whatever conversations took place, the applicant’s solicitor did not find to be satisfactory or helpful for the applicant. Nevertheless, the applicant proceeded to come to Australia and present himself in circumstances where he was aware of the recent High Court case in Love and Thoms and, therefore, was aware of the issues in relation to that case of identifying as Aboriginal in order to gain entry to Australia and be entitled to remain in Australia.

20. In my view, such inquiries should have been made by the applicant to the relevant authorities and departments prior to arriving in Australia. The applicant’s solicitor’s said that there are no systems and procedures in place at the moment and that may well be so. However, to my mind, that does not detract from the applicant’s responsibility in ensuring that he had whatever evidence he needed to satisfy the authorities that he fell within the persons identified in Love and Thoms and was therefore a person entitled to entry to Australia and to remain in Australia.

21. At present, there is no person in Australia in authority who has made a decision that the applicant does meet the Love and Thoms criteria. In those circumstances, the applicant took the chance that upon arrival in Australia he would be able to enter.

22. The respondent is obviously entitled to conduct an investigation in relation to a person such as the applicant claiming Aboriginality and to have an opportunity to explore both the authenticity and the legislative standing of the documents identified as exhibit 1A. However, such material should have been provided to the respondent prior to the applicant leaving New Zealand. As stated above, there is no evidence before me to suggest that this was not possible.

23. As referred to above, there is more than one criteria in identifying Aboriginality. Indeed, if the applicant ultimately meets the relevant criteria identified in Love and Thoms, he will be able to enter Australia in accordance with those principles and policies. Until that time, in my view, there is no compelling reason for the applicant to remain in Australia.

24. On the evidence presently before me, in the absence of evidence as to the status of the Aboriginal Corporation Tasmania having any authority to determine Aboriginality and in the absence of evidence that meets other criteria identified in Love and Thoms, I am not satisfied that the applicant has established a prima facie case for the relief sought.

25. The applicant’s solicitor submits that the balance of convenience should weigh in favour of the applicant where there is no prejudice to the respondent. Whilst I accept that the prejudice may not be significant, arrangements need to be made and costs incurred for the applicant to be placed in detention or removed to an appropriate facility. Accordingly I do not accept the applicant’s submission that there is no prejudice to the respondent.

26. The applicant has chosen to take the course that he has and, in my view and as stated above, the circumstances dictate that there is no reason why the applicant cannot await in New Zealand the results of the investigation by the respondent of his application for entry into Australia. 

27. Accordingly, the application is refused.

28. Orders should be made requiring the applicant to file forthwith an Application seeking the orders referred to in paragraph 1 above and requiring each party to file a Notice of Appearance.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date: 08 February 2021