216323116 Judicial Review Forms 66 and 17 PDF

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Form 66 Rule 31.01(1)

Originating application for judicial review No.

of 2019

Federal Court of Australia District Registry: VICTORIA Division: GENERAL

BARAKA LIM and another Applicants

MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent To the Respondent: The Applicant applies for the relief set out in this application. The Court will hear this application, or make orders for the conduct of the proceeding, at the time and place stated below. If you or your lawyer do not attend, then the Court may make orders in your absence. You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding. Time and date for hearing: [Registry will insert time and date] Place: 305 William Street, Melbourne in the State of Victoria The Court ordered that the time for serving this application be abridged to [Registry will insert date, if applicable] Date: 26 April 2019

Signed by an officer acting with the authority of the District Registrar Filed on behalf of (name & role of party) Prepared by (name of person/lawyer) Law firm (if applicable) Tel Email Address for service (include state and postcode) .

Fax

[Form approved 01/08/2011]

2 The Applicant applies to the Court to review the decision of the Respondent, in its capacity as the Minister of Immigration and Citizenship, which refused a protection visa under s 65(1)1 of the Act to the Applicant Baraka Lim on 30 January 2019. This decision will hereby be referred to as ‘the Decision’. Details of claim The Applicant is aggrieved by the decision because: 1.

The Applicant’s interests are adversely affected by the decision2 (ADJR Act s 3(4)).

2.

The Applicant is likely to gain some advantage if the action succeeds or some disadvantage if the action fails3 (ACF v Cth).

Grounds of application 1.

Sections 5(1)(a) and 6(1)(a) (breach of the rules of natural justice)

2.

Section 5(2)(b) and 6(2)(b) (failing to take a relevant consideration into account)

3.

Section 5(2)(a) and 6(2)(a) (taking an irrelevant consideration into account)

4.

Section 5(2)(g) and 6(2)(g) under s 5(1)(e) and s 6(1)(e) (exercise of power so unreasonable)

Orders sought 1.

A declaration that the Respondent’s decision is unlawful and improper.

2.

A writ of certiorari or an equivalent order to quash the Decision.

3.

A writ of mandamus or an equivalent order compelling the Respondent to appropriately exercise its power and reach a fresh decision.

4.

Alternatively, order the Respondent be compelled by injunction to provide appropriate protections to the Applicant in accordance with the relevant laws and legal procedures.

5.

The respondent pays the Applicant’s costs of and incidental to this Application.

6.

Such further or other orders or relief as this Honourable Court deems just.

Applicant’s address The Applicant’s address for service is:

The Applicant’s address is: YOUTHLAW 1

Migration Act 1958 (Cth) s 65(1). Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(4). 3 Australian Conservation Foundation v Commonwealth [1980] HCA 53. 2

3 244 Flinders Street Melbourne, Victoria, 3000. Service on the Respondent It is intended to serve this application on the Respondent.

Date: 26 April 2019

Signed by Lawyer for the Applicant

Schedule

4 No. Federal Court of Australia District Registry: VICTORIA Division: GENERAL

Applicants Second Applicant: YOUTHLAW

Date: 26 April 2019

Form 17 Rule 8.05(1)(a)

Statement of claim

of 2019

5 No.

of 2019

Federal Court of Australia District Registry: VICTORIA Division: GENERAL

BARAKA LIM and another Applicants MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JURISICTION 1.

The Applicant has jurisdiction to bring an application for judicial review against the Respondent in its capacity as the Minister for Immigration and Citizenship (‘the Minister’) for its decision to refuse to grant a protection visa (‘the Decision’) under s 65(1)4 of the Migration Act 1958 (Cth). This application for judicial review is brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth)5. 1.1.

Jurisdiction under s 5(1) of the ADJR Act: 1.1.1. The Federal Court has jurisdiction to hear this application under the ADJR Act, as the Applicant is a party aggrieved by the decision of the Respondent, and the Decision is one to which falls under the scope of the ADJR Act6. 1.1.2. The Applicant’s interests and how they have been aggrieved by the Decision is outlined. 1.1.3. The Decision is of an administrative character7 and made under an enactment8, specifically the Migration Act 1958 (Cth) (‘the Migration Act’), and thus falls under the scope of the ADJR Act. 1.1.4. The Decision is a ‘decision’ as defined under s 3(2) of the ADJR Act because the act of refusing to issue a visa is an act of ‘refusing to make an order, award or determination9’ or similar to other provisions in the subsection. The Decision had a real effect on the Applicant and was ultimate, not just a mere expression of opinion having no effect on a person10.

4

Migration Act 1958 (Cth) s 65(1). Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1). 6 Ibid. 7 Ibid s 3(1). 8 Ibid s 3(1)(a). 9 Ibid s 3(2)(a). 10 Australian Broadcasting Tribunal v Bond [1990] HCA 33. 5

6 2. The Decision was made by the Minister pursuant to powers derived from the Migration Act11. Section 48412, states that only the High Court, Federal Court and Federal Circuit Court have jurisdiction to review migration decisions. Section 3A13 defines ‘valid application’ of the provisions of the act as within the Commonwealth’s legislative power. The Minister for Immigration and Citizenship is the correct respondent. JUSTICIABILITY 3. There is no issue of justiciability in this matter. The matter is not beyond of the justiciability of the Court (war – Toohey14, foreign policy – Aye15), nor does it concern a hypothetical issue (Re McBain16) and has a direct and immediate consequence on the legal rights and interests of the Applicant (Peko Wallsend)17. STANDING 4. As a ‘person aggrieved’ by the Decision of the Respondent, Baraka Lim has standing as defined in s 5(1) of the ADJR Act and is thus, allowed to apply for judicial review. As stated in AG of Gambia v Pierre Sarr N’jie18, the definition of ‘persons aggrieved’ should not be subjected to a restrictive interpretation. 5. The definition includes any person who has a genuine grievance because an order has been made which prejudicially affects his interests. Ogle v Strickland19 states that a person with ‘special interest’ is a person aggrieved. The test for special interest is ACF v Cth20 which requires that the Applicant show some kind of real advantage or disadvantage if the action succeeds or fails, respectively. 5.1.

If the action fails, Baraka Lim faces the threat of psychological abuse from socalled ‘gay conversion’ therapy. She is also at risk of causing physical harm to herself as she has already attempted suicide once. The nature of the consequences if the action fails can be considered more than ‘mere intellectual or emotional concern21’. Rather, they are dangerous and potentially lifethreatening, especially considering that the Applicant is still in her developing years.

11

Migration Act 1958 (Cth) s 54. Ibid s 484(1). 13 Ibid s 3A. 14 R v Toohey [1981] HCA 74. 15 Aye v Minister for Immigration and Citizenship [2010] FCAFC 69. 16 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 188 ALR 1. 17 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 55 FCR 492. 18 The Attorney-General of the Gambia v Pierre Sarr N’jie [1961] UKPC 19. 19 Ogle v Strickland (1987) 71 ALR 41. 20 Australian Conservation Foundation v Commonwealth [1980] HCA 53. 21 Ibid. 12

5.2.

7 It is relevant to note that under the Migration Act s 501J22, the Minister can, upon deciding to refuse or cancel a protection visa, substitute a decision that is more favourable to the applicant in the appeals phase.

6. The Applicant may also have a special interest in the Decision through the written submissions by Ms Muldoon, Baraka’s child counsellor and Professor David Cruz, an internationally renowned legal expert on gay conversion therapy. On the standing of members of the public, ACF v Cth states that: If a member of the public has the right to be heard (or to make a submission or to comment in opposition, or in support of, an administrative decision or proposal), he is entitled to be heard of have his submission or comment dealt with according to legal principles, that is, according to the procedure laid down by law. It is not sensible to deny standing to members of the public to enforce rules under the Act by which Parliament has provided they shall be consulted23. 6.1.

ACF v Cth also states that because the Applicant went to the trouble of collecting these statements the matter is clearly of importance to them and thus, they are entitled to have the statements reviewed by the Court24. The Applicant, as a minor in a precarious situation, had enlisted the help of Youthlaw who in turn enlisted Ms Muldoon and Professor Cruz. This was no simple task and the Applicant clearly intended to give herself the best chance at obtaining the protection visa.

6.2.

In ACF v Cth, it was held that ‘the plaintiff is more particularly affected [than others] as it has gone to the trouble of submitting comments. It is entitled to have these dealt with legally, not passed over or dealt with irregularly25.’ The Applicant deserves to have all her submissions considered by the Minister.

GROUNDS OF REVIEW 7. Sections 5(1)(a) and 6(1)(a) (breach of the rules of natural justice). The background of the Minister, Sarah Conley, suggests she is heavily biased against the LGBTI community and persons within it. This is a clear violation of the bias rule, which could be taken as actual bias (Jia26), but due to the difficult standard of proof required, best taken as apprehended bias (Ebner27). The standard for whether the Decision was biased is whether ‘it would be reasonable for the general public or one of the parties to suspect the decision-maker of not bringing an unprejudiced and impartial mind to the solution of the issues before him’28

22

Migration Act 1958 (Cth) s 501J. Australian Conservation Foundation v Commonwealth [1980] HCA 53. 24 Ibid. 25 Ibid. 26 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17. 27 Ebner v The Official Trustee in Bankruptcy [2000] HCA 63. 28 Stack v Chief of Army [2016] FCCA 1809. 23

7.1.

8 The test for apprehended bias is defined in Ebner29 and comprises two questions: 1. What facts indicate that the decision maker might not be impartial? 2. What is the logical connection between the facts and lack of impartiality?

7.2.

Factors that indicate bias include interest, conduct, association and knowledge of prejudicial (extraneous) information. In Jia30, it was required of the ‘Minister to consider the national interest… the position of the Minister is substantially different from that of a judge.’ In the present day, especially after the Marriage Act amendment31, it would be unreasonable to value a person of LGBTI identity differently to that of a straight person. It is safe to say that the ‘national interest’ is that of the progression of LGBTI rights, of which past actions of the Minister have not aligned with.

7.3.

As an associate of a Pentecostal church (which is notably anti-LGBTI), the Minister has previously stated on record that, ‘gay conversion therapy is not an issue for her,’ ‘people of the same sex should not be allowed to marry each other under Australian law,’ and ‘let kids be kids. We do not need gender whisperers in our schools.’ These are explicitly anti-LGBTI statements that would reflect a mindset that a reasonable observer would believe creates a conflict of interest against the welfare of the Applicant (Isbester v Knox32).

7.4.

The report which was provided to the Minister by Dr Sykes, the child psychiatrist, was not made available to the Applicant or Youthlaw. This report was used in the decision-making process and was used as basis for two of the five reasons that Baraka’s Application was rejected for. Had the Applicant or Youthlaw had access to the report prior to the Decision, comments could have been made to counter the arguments in the report. As the report was only available to the Minister, it can be considered prejudicial to the Applicant.

7.5.

From the facts at hand, it can be seen that the Minister has a history of antiLGBTI sentiment that clearly puts her views at odds with that of the Applicant, a lesbian. In addition, the Sykes report and the Independent Country Information was not made available to the Applicant and her lawyers, creating an imbalance of information that would make the Decision biased against the Applicant.

8. Section 5(2)(b) and 6(2)(b) (failing to take a relevant consideration into account). In not considering the submissions of Ms Muldoon, Professor Sykes and Youthlaw’s potential

29

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63. Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17. 31 Marriage Amendment (Definition and Religious Freedoms) Bill 2017 32 Isbester v Knox City Council [2015] HCA 20. 30

9 comments on the current Independent Country Information in relation to Malaysia before making the Decision, the Minister has failed to take a relevant consideration into account. 8.1.

According to Peko-Wallsend33, ‘if the relevant factors… are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act’ – Mason J. Section 54(1)34 can be interpreted to say that all information that is submitted in the, and with the Application or given before the Minister makes their decision (s 55(1)35) is to be considered as part of the decision-making process.

8.2.

Under s 54(1)36 of the Migration Act the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. With the assistance of Youthlaw, the Applicant made submissions from two professionals in relevant fields to her situation (a lesbian child undergoing gay conversion therapy). In the commentary provided by the Minister in the Decision, neither of these submissions were mentioned and it is safe to say that they were not considered.

8.3.

It is stated that the Department had made assurances to Youthlaw that the current Independent Country Information in relation to Malaysia would be presented to Youthlaw for comment prior to the Minister making her Decision. This never happened, and the Minister’s Decision was made without regard to the potential comments from Youthlaw on behalf of the Applicant.

8.4.

It is true that s 54(3)37 of the Migration Act allows the Minister to push forward to a Decision before giving the Applicant a chance to make submissions, but in this case, the Department had made explicit assurances that the Applicant and her lawyers had relied upon. A reasonable observer would likely believe that due to this, it is unreasonable and in bad faith for the Minister to make her Decision before the Applicant was given a chance to review the Independent Country Information. It is also unreasonable for the Minister to not consider the submissions from Ms Muldoon and Professor Sykes in the Decision.

9. Section 5(2)(a) and 6(2)(a) (taking an irrelevant consideration into account) 9.1.

In Osmond38, the court stated that ‘if the decision maker does not give any reason for his decision, the court may be able to infer that he had no good reason. Furthermore, in Jones v Dunkel39, the court found that an inference of

33

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Migration Act 1958 (Cth) s 54(1). 35 Ibid s 55(1). 36 Ibid s 54(1). 37 Ibid s 54(3). 38 Public Service Board of NSW v Osmond [1986] 159 CLR 656. 39 Jones v Dunkel (1959) 101 CLR 298. 34

10 fact adverse to a party can be drawn by their failure to give evidence to explain or contradict an issue. 9.2.

In the Decision commentary, the Minister did not provide a conclusive reason beyond citing Dr Sykes’ report (which was not made available to the Applicant) and the Independent Country Information (also not provided). The Minister also made an inference of fact, saying that ‘in the unlikely event Baraka is returned to Exodus. I do not accept that under Australian law that she would be subjected to cruel or inhuman treatment…’ This is despite knowing of Baraka’s attempted suicide in response to the ‘conversion therapy’. The Minister also assumes that Baraka’s parents, one of whom is unaware of her attempted suicide, will not return her to Exodus. This is despite knowing they are devout Pentecostals who believe that her being lesbian is against God. It is safe to say a reasonable person would not take these considerations into account when making the Decision.

10. Sections 5(2)(g) and 6(2)(g) under s 5(1)(e) and s 6(1)(e) (exercise of power so unreasonable) 10.1.

The standard for unreasonableness is whether a reasonable person could have made the Decision in the position of the decision maker. The measure of what is considered unreasonable is whether the Decision could be considered an ‘attack on the process of fact-finding’ or an ‘attack on the exercise of a discretionary power’ (Eshetu40).

10.2.

As migration decisions are effectively made at the discretion of the Minister41, the test to be applied is the discretionary power test. Wednesbury42 states that an unreasonable decision is one that could not have been made by any reasonable person. Decisions that are made arbitrarily, unjustly or partially will also be considered unreasonable43.

10.3.

Gummow J in Fares Rural Meat44 outlines a three-part framework for unreasonableness; the first part where the decision maker has multiple powers available but chooses the one power which violates the rights of the person affected. Section 36(2A)45 of the Migration Act states that a protection visa should be granted if a non-citizen will be subject to degrading treatment or punishment in their home country. The Applicant has previously been subject to ‘therapy’ aimed at ‘correcting’ her sexuality and taught that the way she has lived her life

40

Minister for Immigration v Eshetu [1999] 197 CLR 611. Migration Act 1958 (Cth) s 501. 42 Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223. 43 The Minister for Primary Industries & Energy v Austral Fisheries P/L [1993] FCA 46. 44 Fares Rural Meat & Livestock Corporation Pty Ltd v Australian Meat & Livestock Corporation & Ors [1990] FCA 181. 45 Migration Act 1958 (Cth) s 36(2A). 41

11 will send her to hell. This degradation of the worth of her life drove her to a suicide attempt. It is safe to say that by refusing to grant a protection visa, the Minister has violated the Applicant’s right to not suffer significant harm. LIMITATIONS 11. There is limitation on the Federal Court’s capacity to conduct judicial review against the Respondent. 11.1.

The Migration Act s 476A46 limits the jurisdiction of the Federal Court but is not applied in this assignmen...