AWV18 v Minister for Home Affairs (No 3)

• Jurisdiction: Australia Federal only
• Judge: DERRINGTON J
• Judgment Date: 18 March 2020
• Neutral Citation: [2020] FCA 365
• Court: Federal Court
• Date: 18 March 2020

FEDERAL COURT OF AUSTRALIA

AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365

Appeal from:	AWV18 v Minister for Home Affairs [2019] FCCA 687
File number:	WAD 122 of 2019
Judge:	DERRINGTON J
Date of judgment:	18 March 2020
Catchwords:	MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – leave to raise a new ground of appeal – Immigration Assessment Authority failed to exercise power under s 473DC to “get” document considered by delegate at interview but returned to appellant – transcript errors concealing document from Immigration Assessment Authority – state of affairs brought about by unusual circumstances rendered failure to exercise power under s 473DC legally unreasonable – jurisdictional error occurring despite Immigration Assessment Authority being unaware of all circumstances
Legislation:	Migration Act 1958 (Cth)
Cases cited:	AWV18 v Minister for Home Affairs (No 2) [2019] FCA 1315 AWV18 v Minister for Home Affairs [2019] FCA 1202 BJK17 v Minister for Immigration and BJJ17 v Minister for Immigration [2019] FCAFC 171 CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 CGA15 v Minister for Home Affairs [2019] FCAFC 46 CVV16 v Minister for Home Affairs [2019] FCA 1890 DPI17 v Minister for Home Affairs (2019) 366 ALR 665 DVO16 v Minister for Immigration and Border Protection [2019] FCAFC 157 EVS17 v Minister for Immigration and Border Protection (2019) 163 ALD 422 Han v Minister for Home Affairs [2019] FCA 331 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 Minister for Immigration and Border Protection v Haq (2019) 365 ALR 202 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing:	24 February 2020
Date of last submissions:	24 February 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	111
Counsel for the Appellants:	Mr M Crowley
Solicitor for the Appellants:	Australian Migration & Legal Services
Counsel for the Respondents:	Ms SJ Oliver
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDERS

		WAD 122 of 2019
BETWEEN:	AWV18 First Appellant ; AWW18 Second Appellant ; AWX18 (and others named in the Schedule) Third Appellant
AND:	MINISTER FOR HOME AFFARS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE:	DERRINGTON J
DATE OF ORDER:	18 March 2020

THE COURT ORDERS THAT:

1. Leave is granted to raise Ground 2A of the proposed amended notice of appeal dated 15 October 2019.

2. There be no order as to costs in respect of the application to raise a new ground on appeal.

3. Leave is granted to adduce on the appeal the additional evidence in the affidavits of Mr Ganasan Arujunan dated 15 October 2019 and AWV18 dated 6 August 2019.

4. The appeal be allowed.

5. Orders 1 and 2 of the decision of the Federal Circuit Court of Australia made on 28 February 2019 be set aside and in lieu thereof it be ordered:

   1. a writ of certiorari be issued to quash the decision of the Immigration Assessment Authority dated 31 January 2018;

   2. the matter be remitted to the Immigration Assessment Authority to review the Minister’s decision of 12 June 2017 according to law;

   3. the first respondent pay the appellants’ costs of the application.

6. The first respondent pay the appellants’ costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1. There are six appellants to this appeal who are all members of the one family. AWV18 is the father of the family group and AWW18 is the mother. The remaining four appellants are their children. They are all Sri Lankan, although the sixth appellant was born in Australia.

2. On 25 November 2016 the appellants made a combined application for a Safe Haven Enterprise Visa (protection visa) (SHEV). In that application, the appellants relevantly claimed they feared harm from the Sri Lankan authorities by reason of their imputed connection with the Liberation Tigers of Tamil Eelam (LTTE). This connection was alleged to arise because AWW18’s two brothers, MA and JA, had been members of the LTTE.

3. On 28 March 2017 the first and second appellants attended an interview with the Minister’s delegate in relation to their application. At that interview, they brought several documents with them to support their claims. Amongst them was a document which has come to be referred to as the “obituary document”. It was written in Sinhalese but may not have been accompanied by any translation. It appeared to be a newspaper clipping, which was said to be an obituary notice for MA. It showed a picture of a man in civilian clothing. Two dates were recognisable on it as 30.12.1977 and 20.01.2009. It appears from the material that the delegate was shown the document but was not given it or a copy to retain.

4. On 12 June 2017 a delegate of the Minister for Immigration and Border Protection refused to grant SHEV visas to the appellants. Pursuant to s 473CA of the Migration Act 1958 (Cth) (the Act) the application was referred to the Immigration Assessment Authority (the Authority) by the Secretary of the department. Importantly, in the course of its review the Authority sought from the Secretary a copy of the obituary document but the Secretary was not able to provide it. The Authority did not attempt to obtain a copy from the appellants.

5. On 31 January 2018 the Authority affirmed the delegate’s decision not to grant the protection visas sought by the appellants.

6. On 26 February 2018 the...