FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHF18 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1458 |
| Catchwords: ADMINISTRATIVE LAW – Whether the IAA has a duty to provide to a referred applicant information supplied to it by the Minister for Home Affairs for the purposes of its review – whether the IAA has power to provide to a referred applicant information supplied to it by the Minister for Home Affairs for the purposes of its review. |
| Legislation: Migration Act 1958, ss.5J, 36, 473BA, 473DA, 473DE, 473FA, 474 Acts Interpretation Act 1901, s.13 |
| Applicant: | AHF18 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 155 of 2018 |
| Judgment of: | Judge Cameron |
| Hearing date: | 29 May 2018 |
| Date of Last Submission: | 29 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R. Turner of Turner Coulson Immigration Lawyers |
| Counsel for the First Respondent: | Mr B. Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 155 of 2018
| AHF18 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Nigeria who first arrived in Australia on 18 September 2000.On 21 September 2017 he lodged an application for a protection visa that is the subject of this proceeding with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Nigeria because of a debt he owed to a Nigerian man he met in Australia. On 7 November 2017 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The matter was then referred to the Immigration Assessment Authority (“IAA”) for a review of that departmental decision. The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is…
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- Case
- [2018] FCCA 1458
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the IAA had a duty or power to provide to a referred applicant information supplied to it by the Minister for Home Affairs for the purposes of its review. The applicant contended that denial of access to such information would render the review inefficient and suggested it indicated a predetermined view by the IAA.
Judge Cameron held that provisions such as section 473FA of the Migration Act 1958 (Cth), which outlines the IAA's objective of providing an efficient, quick, and unbiased review mechanism, are exhortative in nature and do not create grounds for judicial review. Citing established authority, the court found that any perceived failure by the IAA to comply with these exhortations does not constitute jurisdictional error. As no jurisdictional error on the part of the IAA was demonstrated, the application was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Perhaps more relevantly, s.473FA(1) provides:473FA How Immigration Assessment Authority is to exercise its functions(1)The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review). The applicant submitted that it would not be an efficient review if an applicant was denied access to all the information before the IAA. The applicant further submitted that it would be reasonable to infer from the IAA’s denial to him of access to such material that nothing he could say or do would “dissuade it from the view it had decided to take”. The allegation involves a misconception of the nature and function of the relevant provision(s). Provisions such as s.473FA, and its summary in s.473BA, are exhortative in nature and create no ground for judicial review: Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324 at [80]; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 635 [77], 642-643 [108], 659 [158]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at 342-343 [12], 359 [53]. Any perceived failure by the IAA to comply with the exhortations in ss.473BA and 473FA therefore does not ground a finding of jurisdictional error. Jurisdictional error on the part of the IAA has not been demonstrated Consequently, the application will be dismissed.