AIV18 v Minister for Home Affairs - [2019] FCCA 553

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIV18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 553

Catchwords:
MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether conclusions open on the evidence – whether finding constitutes a jurisdictional fact – decision affected by error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2), 46A(2), 65, 473CA, 473CB

Cases cited:

ABD18 v Minister for Immigration & Anor [2018] FCCA 3378
AUG17 v Minister for Immigration & Anor [2017] FCCA 1874

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Buchwald v Minister for Immigration & Border Protection (2016) 242 FCR 65 Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151

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

SZNKV v Minister for Immigration & Citizenship [2010] FCA 56

Applicant:

AIV18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 46 of 2018

Judgment of:

Judge Kendall

Hearing date:

27 February 2019

Date of Last Submission:

27 February 2019

Delivered at:

PERTH

Delivered on:

8 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr R. Saul-Jahnke

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondents:

Ms S. Oliver

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

A writ of certiorari issue quashing the decision of the Second Respondent dated 8 January 2018.
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 46 of 2018

AIV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 24 January 2018, amended on 2 February 2019 (“Amended Application”), the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 8 January 2018.
The decision of the IAA affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) dated 17 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.
In his Amended Application for judicial review, the applicant identifies one ground of review. In effect, the applicant raises a “no evidence” ground, contending that the IAA’s conclusion that the Applicant “is likely a low-level adherent of his Shia Islam faith” was not open on the evidence.

Background

The applicant is a 38 year old citizen of Afghanistan (Court Book (“CB”) 18). He is ethnically a Hazara and religiously a Shia Muslim (CB 1…

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 553
Decision Date: 8 March 2019

CaseChat Overview and Summary

The applicant, AIV18, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia seeking to quash the Tribunal's decision.

The central legal issue before the Federal Court was whether the Administrative Appeals Tribunal had erred in law in its assessment of the applicant's claims. Specifically, the court was required to determine if the Tribunal had correctly applied the legal test for establishing membership of a particular social group for the purposes of the *Migration Act 1958* (Cth) and the *1951 Convention relating to the Status of Refugees*. This involved examining whether the Tribunal had adequately considered the evidence presented by the applicant regarding the alleged persecution and whether its findings of fact were supported by that evidence.

Justice Kendall found that the Tribunal had made an error of law in its assessment of the applicant's claim to be a member of a particular social group. The Tribunal had failed to properly consider the evidence relating to the applicant's alleged membership of a specific social group and had applied an overly restrictive interpretation of the criteria for such membership. The court held that the Tribunal's reasoning was flawed and that its decision was not open to it on the evidence. Consequently, the Federal Court quashed the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.

Orders