AKJ18 v Minister for Immigration - [2020] FCCA 3

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKJ18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant’s fears found not to be well-founded – whether the applicant is an unauthorised maritime arrival and whether the Authority erred in considering whether to receive new information considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 65, 473DD, 477

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111

BVZ16 v Minister for Immigration (2017) 254 FCR 221

CSR16 v Minister for Immigration [2018] FCA 474

CWW18 & Ors v Minister for Immigration & Anor [2020] FCCA 26

DLB17 v Minister for Immigration & Anor [2018] FCCA 1299

DLB17 v Minister for Immigration [2018] FCAFC 230

DYS16 v Minister for Immigration [2018] FCAFC 33

FFZ18 v Minister for Immigration & Anor [2020] FCCA 1

Hossain v Minister for Immigration (2018) 92 ALJR 780

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

Applicant:

AKJ18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 218 of 2018

Judgment of:

Judge Driver

Hearing date:

28 November 2019

Delivered at:

Sydney

Delivered on:

24 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Solicitors for the Applicant:

Barriston Lawyers

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

DLA Piper

ORDERS

The application as amended on 22 March 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 218 of 2018

AKJ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 24 November 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 22 November 2018.
The applicant is a citizen of Iran who came to Australia in October 2012 and on 5 May 2016 made an application for a Safe Haven Enterprise Visa (SHEV). He claimed that he was born into a strict Shia Muslim family, and that he grew to resent the restrictions of his religion. He claimed to have encountered various incidents of discrimination including violence perpetrated against him for religious and political reasons, as he claimed also to have been involved in the 2009 presidential election campaign. He claimed that he had been informed by a friend at his work there was a warrant out for his arrest, and that since he came to Australia his wife had divorced him, that she had lost her job and that his son was harassed at school.
On 11 April 2017 the delegate refused to grant the applicant a SHEV.[1] On 19 April 2017 the…

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.

Keep reading for free

Create a free CaseChat account to read AKJ18 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 3
Decision Date: 24 March 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Immigration Assessment Authority (IAA) to refuse a protection visa to the applicant, who claimed to fear harm in Iran. The applicant was an unauthorised maritime arrival.

The primary legal issues before the court were whether the applicant was indeed an unauthorised maritime arrival, and whether the IAA had erred in its consideration of whether to receive new information relevant to the applicant's claim. The court was asked to determine if any such error constituted a jurisdictional error.

Judge Driver found that the applicant was an unauthorised maritime arrival. Crucially, the court held that the IAA had not made a jurisdictional error in its assessment of whether to receive new information. The reasoning focused on the proper application of the relevant legislative provisions and the IAA's procedural fairness obligations in considering such information.

The application for review was dismissed.

Orders