ADX17 v Minister for Immigration - [2017] FCCA 2768

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADX17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2768

Catchwords:
MIGRATION – Safe Haven Enterprise (Class XE) Visa – whether IAA fell into jurisdictional error in failing to consider country information – whether failure to consider a claim or part of a claim arising on the evidence – whether failure to give adequate reasons – no jurisdictional error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa) & 476

Cases cited:

MZZMG v Minister for Immigration & Border Protection [2015] FCCA 607

Applicant:

ADX17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 7 of 2017

Judgment of:

Judge Heffernan

Hearing date:

1 June 2017

Date of Last Submission:

1 June 2017

Delivered at:

Adelaide

Delivered on:

24 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr S Hodges

Solicitors for the Applicant:

Hodges Legal

Counsel for the Respondents:

Mr O Young

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The applicant’s Amended Application is dismissed.
The applicant do pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 7 of 2017

ADX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) of a decision of the Immigration Assessment Authority (‘IAA’) dated 13 December 2016. That decision affirmed an earlier decision of a delegate of the first respondent not to grant a Safe Haven Enterprise (Class XE) Subclass 790 visa (‘SHEV’) to the applicant. The decision of the delegate was made on 28 October 2016.
The applicant raises three grounds of review by an Amended Application filed 25 May 2017. On 17 February 2017, the applicant was given leave by the Registrar to file any amended application and affidavit by 14 April 2017. No objection has been taken by the first respondent to the applicant amending his application outside the time stipulated by the Registrar. I give the applicant leave to rely on the grounds pleaded in the Amended Application.
The amended grounds are as follows:
“1.The IAA committed jurisdictional error by incorrectly applying the UNHCR risk profiles to the applicant.
PARTICULARS
a.At [9], the applicant claimed that his cousin was an LTTE spy and had…

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: [2017] FCCA 2768
Decision Date: 24 November 2017

CaseChat Overview and Summary

The applicant, ADX17, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned 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. This involved an examination of whether the delegate, in assessing the applicant's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process. Specifically, the Court considered whether the delegate had adequately assessed the risk of harm to the applicant in their country of origin, having regard to the specific circumstances and evidence presented.

Judge Heffernan found that the delegate had failed to properly consider the applicant's claims regarding past persecution and the real chance of future persecution. The Court reasoned that the delegate's assessment was based on an erroneous understanding of the evidence and that the delegate had not adequately engaged with the specific vulnerabilities of the applicant. Consequently, the Court concluded that the decision was affected by jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders