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AKQ16 v Minister for Immigration

AKQ16 v Minister for Immigration

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Case Copied 23 January 2019 25 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

AKQ16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 90

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority’s decision was legally unreasonable – consequences of invalid s.473GB Certificate – jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359, 424A, 473CB, 473DB, 473DC, 473DD, 473DE, 473GB, pt.7AA

Cases cited:

AYF16 v Minister for Immigration & Border Protection [2018] FCAFC 129
Baker v The Queen [1975] AC 774
BVD17 v Minister for Immigration & Border Protection [2018] FCAFC 114
CED16 v Minister for Immigration & Border Protection [2018] FCA 1451
CDZ16 v Minister for Immigration & Border Protection [2017] FCA 967
El Merhabi v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 375
Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309

Minister for Immigration & Border Protection v AMA16 (2017) 254 FCR 534
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
NBCY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 922
Orica Limited v Commissioner of Taxation of the Commonwealth of Australia (2001) 182 ALR 77
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481
Prentice v Fewin [2017] FCA 490
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
SAS Trustee Corporation v Miles (2018) 92 ALJR 1064
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718

Applicant:

AKQ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1811 of 2017

Judgment of:

Judge Smith

Hearing date:

6 November 2018

Date of Last Submission:

20 November 2018

Delivered at:

Sydney

Delivered on:

23 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin

Counsel for the First Respondent:

Mr J Kay Hoyle

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1811 of 2017

AKQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority made on 5 June 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Iraq who arrived in Australia by boat on 11 November 2012. On 30 June 2015 he lodged an application for a protection visa. His claims for protection were summarised accurately in the Minister’s written submissions as follows:
11.The applicant claims to be a Shi’a muslim who started to work in Karbalaa as a chef in 2007 for a food and security company that was owned by the Badr Organisation, a former Shi’a militia group.
12.The applicant claimed that there was a bitter conflict between the Badr Organisation (backed by Ammar Al-Hakeem) and the Mahdi Army (backed Moqtada Al-Sadr). He claimed…

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 90
Decision Date: 23 January 2019

CaseChat Overview and Summary

The applicant, AKQ16, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around the validity of a certificate issued under section 473GB of the *Migration Act 1958* (Cth) and its impact on the IAA's review process.

The primary legal issue before the court was whether the IAA's decision was legally unreasonable, thereby constituting a jurisdictional error. This question necessitated an examination of the consequences of an invalid section 473GB certificate on the IAA's power to conduct its review and make a binding decision.

Judge Smith reasoned that a certificate issued under section 473GB is a prerequisite for the IAA to exercise its review jurisdiction. If such a certificate is found to be invalid, the IAA lacks the legal authority to proceed with the review. Consequently, any decision made by the IAA in the absence of a valid certificate is a nullity, amounting to a jurisdictional error. The court applied the principle that a tribunal or authority must act within the scope of its statutory powers, and exceeding those powers renders its decision invalid.

The court found that the section 473GB certificate in this instance was invalid. Accordingly, the IAA had no jurisdiction to review the applicant's protection visa application. The court ordered that the IAA's decision be quashed.

Orders