AJE18 v Minister for Home Affairs - [2019] FCCA 3365

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJE18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3365

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – extension of time application – reasonable prospects of success – extension of time granted – substantive application reviewed – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958, s.477

Cases cited:

Collector of Customs v Pozzolanic [1993] FCA 456
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82
SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298

Applicant:

AJE18

First Respondent:	MINISTER FOR HOME AFFAIRS
Second Respondent	IMMIGRATION ASSESSMENT AUTHORITY

File number

MLG 213 of 2018

Judgment of:

Judge Blake

Hearing date:

10 October 2019

Date of Last Submission:

10 October 2019

Delivered at:

Melbourne

Delivered on:

21 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Forster

Solicitors for the Applicant:

Sentil Solicitors

Counsel for the Respondents:

Ms Campbell

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

Pursuant to s.477(2) of the Migration Act 1958 the time for the Applicant to file an application in respect of the decision of the Immigration Assessment Authority dated 30 June 2017 be extended to 29 January 2018.
The Application filed on 29 January 2018 and amended on 17 September 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
Order 1 of the Orders made by Judge McNab on 11 July 2018 be discharged.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 213 of 2018

AJE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 30 June 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a Safe Haven Enterprise (subclass XE-790) visa (‘visa’).
The application for review was filed in this Court on 29 January 2018. This is well outside the time limit prescribed by section 477(1) of the Migration Act 1958 (‘Act’). Accordingly, the Applicant also seeks an order extending the period of time in which to make the application.
For the reasons that follow, I have decided to extend the period of time set out in the Act to permit the Applicant to file the application out of time. I have decided, however, that the substantive application must be dismissed. My reasons for this decision are set out below.

Background

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 3365
Decision Date: 21 November 2019

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, AJE18, challenged a decision made by the Minister for Home Affairs concerning the applicant's visa status. The core of the dispute revolved around the Minister's assessment of AJE18's eligibility for a protection visa, specifically whether the applicant met the criteria for being a refugee under the Migration Act 1958 (Cth).

The primary legal issue before the Court was whether the Minister had erred in law by failing to properly consider all relevant information and evidence presented by AJE18 in support of their claim for protection. This included assessing whether the Minister's adverse credibility findings were reasonably open on the evidence and whether the Minister had adequately addressed the specific risks of persecution identified by the applicant.

Judge Blake found that the Minister's decision-making process contained a jurisdictional error. The Court reasoned that the Minister had failed to adequately engage with significant portions of the evidence provided by AJE18, particularly concerning the applicant's fear of persecution. The Minister's adverse credibility findings were found to be insufficiently substantiated and not reasonably open on the material before the delegate. Consequently, the Court concluded that the decision under review was vitiated by legal error.

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

Orders