ALJ18 v Minister for Immigration - [2018] FCCA 3835

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALJ18 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3835

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the IAA erred in failing to consider “new information” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 65, 473DA(1), 473DC, 473DD, 473GA, 473GB
Pt.7AA

Cases cited:

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
CRM18 v Minister For Home Affairs & Anor [2018] FCCA 3312
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DLB17 v Minister for Immigration [2018] FCCA 1299
DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33
EAA16 v Minister for Immigration & Anor [2018] FCCA 2624
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Applicant:

ALJ18

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 59 of 2018

Judgment of:

Judge Kendall

Hearing date:

19 September 2018

Date of Last Submission:

19 September 2018

Delivered at:

Perth

Delivered on:

21 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr R. Saul-Jahnke

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Ms S. Oliver

Solicitors for the First Respondent:	Sparke Helmore Lawyers
The Second Respondent:	Submitting appearance save as to costs

ORDERS

The applicant’s originating application filed on 31 January 2018 and amended on 6 September 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 59 of 2018

ALJ18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 31 January 2018, amended on 6 September 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) made on 17 January 2018.
The IAA refused the applicant’s application for a Safe Haven Enterprise visa (“SHEV”).
In support of his application before this Court, the applicant raised one ground of review. Broadly, he argued that the IAA had erred in relation to its task under s.473DD(b)(ii) of the Migration Act 1958 (Cth) (the “Act”) by misapplying the requirement that any ‘new information’ be ‘credible personal information’.

Background

The procedural and factual background to these proceedings is relatively uncontentious. Having reviewed all of the material before it, including a detailed Court Book (“CB”) spanning 207 pages, the Court adopts the background facts outlined by the applicant at paragraph 3 to 9 in his written submissions dated 13 September 2018. These background facts are, relevantly, as follows.
The applicant is a citizen of Afghanistan who arrived as an unauthorised maritime arrival at Christmas Island on 7 May 2013 (CB 51).
On 31 May 2016, the Department of Immigration advised the applicant that the bar pursuant to s.46A of the Act had been lifted. The applicant was then invited to apply for a Temporary Protection (Subclass 785) visa (“TPV”) (CB…

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: [2018] FCCA 3835
Decision Date: 21 December 2018

CaseChat Overview and Summary

ALJ18 (the applicant) sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a protection visa. The applicant contended that the IAA had erred in its assessment of their case.

The central legal issue before the court was whether the IAA had failed to consider "new information" that had been provided by the applicant, and if so, whether this failure constituted a jurisdictional error.

Judge Kendall found that the information provided by the applicant was not "new information" in the relevant sense, as it did not introduce a new claim or a significant change in circumstances that would necessitate a reconsideration of the original decision by the IAA. The court applied the principles governing the IAA's review function, which require the consideration of information that is genuinely new and material to the applicant's claim. As no jurisdictional error was established, the application was dismissed.

Orders