ABD18 v Minister for Home Affairs - [2019] FCCA 3012

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABD18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3012

Catchwords:
MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – where the Authority categorised new information as a new claim – whether the Authority erred in its consideration of “exceptional circumstances” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, ss.46A, 65, 473CA, 473CB, 473DD, 473EA

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)

Cases cited:

ABD18 v Minister for Immigration & Anor [2018] FCCA 3378

AYK17 v Minister for Immigration & Border Protection [2019] FCA 1053
CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333
DFP16 v Minister for Immigration & Border Protection [2018] FCA 1901
Minister for Immigration & Border Protection v CLV16 [2018] FCAFC 80

Applicant:

ABD18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 41 of 2019

Judgment of:

Judge Kendall

Hearing date:

31 July 2019

Date of Last Submission:

31 July 2019

Delivered at:

Perth

Delivered on:

23 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr M Guo

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Ms A Ladhams

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for judicial review be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 41 of 2019

ABD18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 6 February 2019.
The IAA’s decision affirmed a decision of a delegate of the then Minister of Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Safe Haven Enterprise visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”).
It is uncontroversial that in order to obtain relief in this Court, the applicant must establish that the IAA has fallen into jurisdictional error.

Background

This matter has previously been before this Court. On that occasion, the Court found that a previous decision of the IAA was affected by jurisdictional error. The decision was, accordingly, remitted for re-hearing: ABD18 v Minister for Immigration & Anor [2018] FCCA 3378 (“ABD18 No.1”).
The history of the matter was set out in extensive detail in the Court’s previous judgment in ABD18 No.1. For present purposes, and in light of the confined nature of the sole ground of review before the Court (discussed below), the Court adopts the background provided in the Minister’s submissions (dated 26 July 2019) at [3]-[12]. This summary was not in dispute. The Court has cross-checked all references contained in that summary and has analysed the materials contained in the 296 page Court Book (“CB”) before the Court. The summary provided is accurate. The Court also adopts [4] in the applicant’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3012
Decision Date: 23 October 2019

CaseChat Overview and Summary

The applicant, ABD18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise visa. The core of the dispute revolved around the IAA's categorisation of information provided by the applicant and its subsequent consideration of "exceptional circumstances" in relation to the visa application.

The primary legal issue before the court was whether the IAA had committed a jurisdictional error in its assessment. Specifically, the court was required to determine if the IAA had erred in its approach to categorising the new information presented by the applicant and, in doing so, whether it had failed to properly consider the threshold of "exceptional circumstances" as required by the relevant migration legislation.

Justice Kendall found that the IAA had not made a jurisdictional error. The court reasoned that the IAA's categorisation of the information was a permissible interpretation of the legislative framework governing its review powers. Furthermore, the court concluded that the IAA had adequately considered the concept of "exceptional circumstances" within the scope of its review, and that its decision was not vitiated by any error of law. Consequently, the application for judicial review was dismissed.

Orders