FEDERAL COURT OF AUSTRALIA BTH17 v Minister for Home Affairs [2019] FCA 1181 Appeal from: BTH17 v Minister for Immigration & Anor [2018] FCCA 1334 File number(s): QUD 418 of 2018 Judge(s): GREENWOOD J Date of judgment: 30 July 2019 Catchwords: MIGRATION – consideration of the disposition of the reserved costs arising out of orders made on 13 November 2018 Legislation: Migration Act 1958 (Cth) ss 5AA, 5 Cases cited: Craig v South Australia (1995) 184 CLR 163 DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447 DBD16 v Minister for Immigration [2018] FCCA 1801 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 Minister for Immigration and Multicultural Affairs and Bhardwaj (2002) 209 CLR 597 Date of hearing: 13 November 2018 Date of last submissions: 13 November 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Applicant: Mr M Black Solicitor for the Applicant: Stolar Law Solicitor for the First Respondent: Sparke Helmore ORDERS QUD 418 of 2018 BETWEEN: BTH17 Applicant AND: MINISTER FOR HOME AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: GREENWOOD J DATE OF ORDER: 30 JULY 2019 THE COURT ORDERS THAT: 1. The first respondent pay the costs of the appellant of an incidental to the appeal to the Federal Court of Australia in proceeding QUD418/2018. 2. The first respondent pay the costs of the appellant of and incidental to the application to the Federal Circuit Court in proceeding BRG366/2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: 1 This matter was heard on 13 November 2018. On that date, I made orders in the following terms: 1. The time for the filing of a notice of appeal from the whole of the judgment of the Federal Circuit Court of Australia is extended to 22 June 2018 and the draft notice of appeal attached to the application filed on 22 June 2018 is deemed to have been filed on that date. 2. The Appellant is granted leave to rely on the amended notice of appeal annexed to the affidavit of Anthony Stolar filed on 29 October 2018. 3. The appeal be allowed. 4. The Orders of the Federal Circuit Court of Australia made on 24 May 2018 be set aside and in lieu thereof the following declarations and orders be made: THE COURT DECLARES THAT: (a) The purported appointment, by notice published on 23 January 2002 in the Commonwealth of Australia Gazette No GN 3, of an area of waters within the Territory of Ashmore and Cartier Islands as a "proclaimed port" is invalid. (b) The Applicant is not an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act 1958 (Cth). (c) The Applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection made on 11 October 2016. THE COURT ORDERS THAT: (d) There issue a writ of certiorari quashing the decision of the Immigration Assessment Authority made on 22 March 2017. 5. The costs of the proceedings before the Federal Circuit Court and the costs of the appeal are reserved. 2 As to Order 5, the first respondent is to pay the appellant's costs of and incidental to the appeal. The costs order made by the primary judge is to be set aside and in its place the first respondent is to pay the applicant's costs of and incidental to the Federal Circuit Court of Australia ("FCC") proceeding. Those orders are to be made for the following reasons. Background 3 The appellant arrived in Australia by boat on 1 October 2012. On 29 September 2015, the first respondent permitted the appellant to apply for either a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa (a "SHEV"). The appellant applied for a SHEV on 26 February 2016. 4 On 11 October 2016, a delegate of the first respondent refused to grant the appellant a SHEV. On 18 October 2016, the first respondent referred the decision to the Immigration Assessment Authority (the "IAA") pursuant to s 473CA of the Migration Act 1958 (Cth) (the "Act"). 5 On 22 March 2017, the IAA affirmed the delegate's decision. The IAA accepted that the appellant had been kidnapped in Afghanistan as an identifiable Hazara. It also accepted as plausible that he was not harmed and managed to escape. The IAA did not consider that these events indicated that the appellant had a well-founded fear or harm as a Shia Hazara in Mazar-e-Sharif, which was a city he could safely access by air. 6 The IAA was not satisfied that isolated incidents of violence in or near Mazar-e-Sharif in 2011 and 2016 indicated that the appellant faced a real chance of persecution as a Shia Hazara upon return in the reasonable foreseeable future. The IAA accepted that the appellant may be subject to discrimination on return in relation to employment, as a consequence of nepotism. However, the IAA noted that Shia Hazaras formed a significant minority group in Mazar-e-Sharif and was not satisfied that as a consequence of nepotism or discrimination he would be denied the capacity to earn a livelihood or would be subject to economic hardship such that his capacity to exist or otherwise suffer treatment that may be considered serious harm as defined in s 5J of the Act. 7 The IAA was not satisfied that returnees like the appellant, who had lived in Pakistan or worked overseas in countries such as Kuwait for a significant period of time, and in a western country, were targeted by insurgents or imputed with an adverse political opinion in Mazar-e-Sharif. It was also not satisfied that the appellant would face a real chance of serious harm on return as a Shia Hazara or as a returnee from the west who had lived most of his life in Kuwait or Pakistan. Accordingly, the IAA was not satisfied that the appellant had a well-founded fear of persecution for the purposes of s 36(2)(a) of the Act. 8 The IAA otherwise considered its anterior factual findings and found that the appellant would not face a real risk of significant harm in Mazar-e-Sharif on the basis of the claims advanced, or because of nepotism or discrimination. 9 The IAA further considered whether there was a real risk that the appellant would suffer significant harm due to generalised violence in Mazar-e-Sharif. The IAA noted that the appellant did not have a risk profile or association with those who were identified as targets of the Taliban. It also relied on country information that Mazar-e-Sharif had the lowest number of civilian victims and that generalised violence was not common. The IAA was accordingly not satisfied that that there was a real risk of the appellant facing significant harm on the basis of the general security situation in Mazar-e-Sharif. 10 The IAA did not consider Ghanzi to be the appellant's home area, but found that even if it was, and could be said to face a real risk of significant harm there, it would be reasonable for the appellant to relocate to Mazar-e-Sharif. The IAA was satisfied that the appellant had the necessary skills and capacity to subsist in Mazar-e-Sharif. The IAA found that he had over 20 years' experience in the service industry, had travelled extensively and could converse in English and Hazarghi, and could speak Urdu and Arabic. The IAA considered that he was resilient and resourceful and would be able to become employed. The IAA considered that the appellant had the ability and capability to establish himself in new locations. 11 The IAA found the appellant did not meet the requirements of s 36(2)(aa) of the Act. 12 On 24 April 2017 (amended on 14 November 2017), the appellant filed an application to show cause in the FCC. The amended application asserts two grounds of review: 1. The decision of the IAA is affected by jurisdictional error because there was a failure to comply with sections 473CB and 473DB of the Migration Act 1958 (Cth) leading to a constructive failure to exercise jurisdiction. 2. The IAA's decision is affected by jurisdictional error because the IAA failed to deal with an integer of the applicant's claim, namely that he was at risk not merely as a person returning to Afghanistan but he was at risk as a person returning from a western country as a failed asylum seeker who had previously come to the attention of the Taliban or some other group in Afghanistan because he was an identifiable Hazara. [particulars omitted] 13 The primary judge dismissed ground one because his Honour held that he was satisfied on the balance of probabilities that the IAA considered the relevant documents either by receiving hard copies or accessing them on a CISNET database. The primary judge considered direct references to the material was not required. 14 As to ground two, the primary judge accepted the first respondent's argument that the appellant's claim was based on the Taliban knowing his identity and possessing the bio data page from his passport. The primary judge held that the IAA (if it was obliged to) did not consider a claim based upon actual knowledge of the appellant's identity and passport, such a claim (or integer thereof) was not clearly articulated by the appellant. 15 Accordingly, the primary judge found that no jurisdictional error was established. The application (and appeal) to this Court 16 On 22 June 2018, the appellant filed an application for extension of time in which to appeal. The appellant also filed a notice of appeal (should leave be granted) and, subsequently, an amended notice of appeal. The grounds of appeal stated were: 1. The Federal Circuit Court of Australia erred by failing to find that the Immigration Assessment Authority failed to deal with an integer of the Applicant's claim, namely that he was at risk not merely as a person returning to Afghanistan but that he was at risk as a person returning from a western country as a failed asylum seeker who had previously come to the attention of the Taliban or some other group in Afghanistan because he was an identifiable Hazara. 2. The Federal Circuit Court of Australia erred by failing to find that: 2.1 The purported appointment by notice published in the Commonwealth of Australia Gazette No GN 3, of an area of waters within the Ashmore and Cartier Islands Territory as a "proclaimed port" was invalid; and 2.2 The Applicant entered Australia by sea at the Ashmore and Cartier Islands; and 2.3 The Applicant was not an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act 1958; and 2.4 The Applicant has not been notified as required by s 66 of the Migration Act 1958 of the decision of a delegate of the Minister for Immigration and Border Protection made on 11 October 2016; and 2.5 The Immigration Assessment Authority had no jurisdiction to make its decision dated 22 March 2017. 17 The second ground, on the appellant's admission, was not argued before the primary judge. 18 In the Affidavit of Anthony Stolar sworn 21 June 2018 the circumstances that resulted in a failure to appeal within time were said to be these: … 4. The Applicant has been intra-state and has been unable to be contacted. 5. As such, we could not obtain proper instructions from our client with regards to the appeal. 6. Additionally, the Applicant was required to find funds necessary for the Appeal fee. 7. We have applied for this extension of time as soon as was practicable due to our client's above circumstances. We note that we have made this application 21 days from the date of judgement which is outside the 14 day time limit. 8. We are ready, willing and able to proceed with the appeal. 19 Mr Black of counsel, for the appellant, articulated two arguments – being the "invalidity ground" and the "overlooked integer ground". In summary, Mr Black submitted that: (a) First – the Invalidity Ground, being the new ground in respect of which leave is sought. This ground relies upon recent authorities to contend that the Applicant was not an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act 1958 (the Act) with the result that he has not been validly notified of the First Respondent's decision and the Second Respondent had no jurisdiction to make its purported decision. (b) Second – the Overlooked Integer Ground, being the original ground pleaded in the Notice of Appeal. This ground contends that the primary Judge erred by failing to find that the Second Respondent overlooked an integer of the Applicant's claim for refugee status. 20 The merits of the "invalidity ground" are said to be that the first respondent (the "Minister") found that the appellant was an unauthorised maritime arrival and a fast track applicant (with the consequence that Part 7AA of the Act applies should a visa application be rejected, as it was here). 21 The appellant said that he was not an unauthorised maritime arrival because contrary to s 5AA(1)(a)(i) of the Act, he did not "enter Australia by sea" (as defined in s 5AA(2) of the Act) and contrary to s 5AA(1)(a)(ii) he did not enter Australia after the commencement of s 5AA because that provision was introduced into the Act with effect from 1 June 2013 (when the appellant arrived on 1 October 2012). 22 The term "port" means a port appointed by the Minister under s 5(5) of the Act. By way of an instrument published in the Commonwealth Gazette on 23 January 2012, the Minister purported to appoint certain "area[s] of waters within the Territory of Ashmore and Cartier Islands" as a "proclaimed port" under the Act. 23 In DBD16 v Minister for Immigration [2018] FCCA 1801 ("DBD16"), the Federal Circuit Court made findings that: (a) "The ordinary meaning of the word 'port' entails a place where there is ordinarily movement of goods and/or passengers between vessels on the water and the land. This ordinarily involves some infrastructure" (at [28]). (b) The Act uses the term "port" in its ordinary sense (at [44]). (c) The relevant area at the Ashmore and Cartier Islands is not a "port" in the ordinary sense of that word ([46]-[55]). (d) As the area referred to in the Minister's Instrument was not a "port", and the Minister only had the power to designate a "port" as a "proclaimed port", the Instrument was invalid (at [56]). 24 As a result, the Federal Circuit Court made declarations that: (a) The Instrument's purported appointment of the area of Ashmore and Cartier Islands as a "proclaimed port" was invalid. (b) The applicant in DBD16 was not an "unauthorised maritime arrival". (c) The applicant in DBD16 had not been notified of the Minister's decision as required by s 66 of the Act. 25 A Full Court of the Federal Court has made the following declarations in relation to a different applicant (see DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447 ("DBB16")): 1. The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 is invalid. 2. The applicant is not an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act 1958 (Cth). 3. The applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 12 July 2016. 26 Their Honours (Perram, Wigney and Lee JJ) held in DBB16 that: (a) For the purposes of the Act, a "fundamental feature of ports is that they must be reasonably adapted to the process of immigration clearance" (at [45]). (b) The Western Lagoon of Ashmore Reef (being where the applicant in that case arrived) had "no infrastructure there which would permit immigration clearance to occur" and it "was and is not a port as the term is used in s 5(5) of the Act (at [37], [46]). (c) The "Minister had no power to appoint the Western Lagoon to be a Port and the instrument doing so is invalid" (at [90]). 27 The appellant seeks to transpose that reasoning to the facts of this case. 28 As to the "overlooked integer ground", the appellant says that ground need only be considered if the "invalidity ground" is not upheld. For the reasons that follow, it is unnecessary to discuss this ground. 29 At the hearing on 13 November 2018, the Minister accepted that DBB16 is binding and relevant, although the Minister contended that it was wrongly decided. Accordingly, the Minister consented to the application for an extension of time and did not oppose the making of orders in the form at [1] of these reasons. 30 The Minister contends that the costs order made by the FCC should remain in place but the Minister agrees that he should pay the appellant's costs of the appeal. The Minister says that the appellant has had the same representation before the FCC and before this Court and the issue now relied upon was not ventilated before the FCC. Moreover, DBB16 was on foot and had not yet been decided. 31 The appellant acknowledges that the decision in DBD16 was handed down after the present proceedings. However, the appellant says that the first respondent was in a position to grapple with the difficulty in DBD16 and DBB16 by virtue of being involved in all of the litigation and, regardless, seemed to oppose (hypothetically) the terms of the declarations in any event. The alternative position advanced by the appellant is that each party should bear its own costs before the FCC. 32 The appellant should have his costs of the proceeding before the FCC and before this Court. A "decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all" (see Minister for Immigration and Multicultural Affairs and Bhardwaj (2002) 209 CLR 597 at 614-615 per Gaudron and Gummow JJ ("Bhardwaj"); see also Hayne J at 646). The High Court's statement in Craig v South Australia (1995) 184 CLR 163 at 179 is also relevant: If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 33 Of course, as Gray and Downes JJ warned in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 at 16, "Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute". 34 This is a case in which the decision of the IAA and FCC judge proceeded upon an incorrect characterisation of the appellant as an "unauthorised maritime arrival" on the basis of an invalid appointment of a port for the purposes of s 5(5) of the Act, which is the condition precedent to entering the "migration zone" (as defined in s 5 of the Act) and, accordingly, being designated as an "unauthorised maritime arrival" for s 5AA(1). 35 Accordingly, the decision of the IAA to treat the appellant as a fast track review applicant under Part 7AA of the Act was wrong at law, and was always wrong. The first respondent is not entitled to their costs in circumstances where the legal basis upon their success did not, as a matter of law, exist. 36 Accordingly, the Court orders that: 1. The first respondent pay the costs of the appellant of an incidental to the appeal to the Federal Court of Australia in proceeding QUD418/2018. 2. The first respondent pay the appellant's costs of and incidental to the application to the Federal Circuit Court in proceeding BRG366/2017. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 30 July 2019