AGK17 v Minister for Immigration - [2019] FCCA 1156

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGK17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1156

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – further amended application relied on at hearing – whether the IAA misconstrued or misapplied s.473DD of the Migration Act 2009 (Cth) by refusing to consider new information on the basis that there were not exceptional circumstances for doing so – applicant alleged that the IAA fell into jurisdictional error because it misled the applicant in relation to the scope of the submissions that the applicant was “allowed” to put to the IAA – neither ground of the further amended application made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 473DA, 473DB, 473DD, 476

Cases cited:

Applicant:

AGK17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 153 of 2017

Judgment of:

Judge Nicholls

Hearing date:

12 March 2019

Date of Last Submission:

12 March 2019

Delivered at:

Sydney

Delivered on:

3 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr B. Mostafa

Solicitors for the Applicant:	Varess
Legal Representative for the Applicant:	Mr F. Varess

Counsel for the Respondents:

Mr T. Reilly

Solicitors for the Respondents:	Sparke Helmore
Legal Representative for the Respondents:	Ms K. Evans

ORDERS

The name of the first respondent be amended to read Minister for Immigration, Citizenship and Multicultural Affairs.
The application made on 17 January 2017, and as further amended, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 153 of 2017

AGK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 January 2017, and further amended on 12 March 2019 seeking review of the decision of the Immigration Assessment Authority (“IAA”) made on 13 December 2016 which affirmed the decision not to grant the applicant a protection visa (“the visa”).

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 1156
Decision Date: 3 May 2019

CaseChat Overview and Summary

The applicant, AGK17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The dispute concerned the IAA's refusal to consider new information provided by the applicant, which the applicant contended constituted jurisdictional error. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the IAA had misconstrued or misapplied section 473DD of the *Migration Act 1958* (Cth) by refusing to consider the new information on the grounds that exceptional circumstances were not present. Allied to this, the applicant alleged that the IAA had fallen into jurisdictional error by misleading the applicant regarding the scope of submissions that could be made to the Authority.

Judge Nicholls found that neither of the grounds raised in the applicant's further amended application were made out. The Court reasoned that the IAA's decision not to consider the new information was a valid exercise of its discretion under section 473DD, as the applicant had not demonstrated exceptional circumstances warranting such consideration. Furthermore, the Court found no evidence that the IAA had misled the applicant concerning the submission process.

Consequently, the application for judicial review was dismissed.

Orders