ABD18 v Minister for Immigration - [2018] FCCA 3378

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABD18 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3378

Catchwords:
MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether discretion under s.473DC ought to have been exercised – whether conclusions open on the evidence – Immigration Assessment Authority’s decision affected by error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5, 5AA, 5H, 46A, 65, 473BB, 473CA, 473DA, 473DB, 473DC, 473DD, 473DE, 473FB, 473GA, 473GB

Pt.7AA

Cases cited:

Plaintiff M70/2011 v Minister of Immigration and Citizenship (2011) 244 CLR 144

Applicant:

ABD18

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 9 of 2018

Judgment of:

Judge Kendall

Hearing date:

15 August 2018

Date of Last Submission:

15 August 2018

Delivered at:

Perth

Delivered on:

23 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr R. Saul-Jahnke

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondents:

Mr P. MacLiver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue quashing the decision of the second respondent dated 18 December 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 9 of 2018

ABD18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 4 January 2018, amended on 3 August 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 18 December 2017.
The decision of the IAA affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) dated 14 March 2017 not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
The applicant seeks an order that the decision of the IAA be quashed and that a writ of mandamus be directed to the IAA.
To succeed in this Court, the applicant must show that the IAA fell into jurisdictional error.

Background

The applicant’s protection visa application

The applicant is a citizen of Afghanistan (Court Book (“CB”) 9).
The applicant arrived in Australia at Christmas Island on 21 April 2013 by sea as an unauthorised maritime arrival (CB 7, 60 and 158).
By letter dated 2 May 2016 the former…

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.

Keep reading for free

Create a free CaseChat account to read ABD18 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3378
Decision Date: 23 November 2018

CaseChat Overview and Summary

The applicant, ABD18, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the lawfulness of the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection.

Judge Kendall found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the risk of future persecution in their country of origin. The delegate's assessment was found to be superficial and did not engage with the specific details provided by the applicant. Consequently, the Court concluded that the decision was affected by jurisdictional error. The Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders