Alk17 v Minister for Immigration - [2020] FCCA 2230

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALK17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2230

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XD) visa – Immigration Assessment Authority – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252
ETA067 v The Republic of Nauru [2018] HCA 46
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
GCRM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 678
BUD17 v Minister for Home Affairs [2018] FCAFC 140
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant:

ALK17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 227 of 2017

Judgment of:

Judge Riethmuller

Hearing date:

5 August 2020

Date of Last Submission:

5 August 2020

Delivered at:

Melbourne

Delivered on:

13 August 2020

REPRESENTATION

Counsel for the Applicant:

Mr White

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Mr Murano

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,464.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 227 of 2017

ALK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘IAA’) dated 5 January 2017, affirming a decision of a delegate of the Minister to refuse a Protection (Class XD) visa (‘protection visa’) to the applicant.
The applicant is a citizen of Iraq who arrived in Australia by boat as an unauthorised maritime arrival on 18 March 2013. He is 61 years old. The applicant lodged an application for a protection visa on 23 March 2016 and participated in an interview with a delegate of the Minister on 8 August 2016. The delegate refused his application on 7 October 2016. The matter was referred to the IAA, which affirmed the delegate’s decision on 5 January 2017.

The applicant’s claims

The applicant’s claims to fear harm rest primarily on two reasons: his place of birth in a Sunni area (leading to the imputation that he is Sunni, and not Shia), and his imputed political opinion based upon his son’s service as an interpreter to the United States (‘US’) military in Basra. As the case before the IAA developed, a claim that he was at risk as someone perceived to be a wealthy businessman became apparent too.
The applicant’s claims are summarised as follows (set out in the First Respondent’s Outline of Submissions dated 21 July 2020 at paragraph [5]):
a)after the civil war commenced in Iraq in 2003, 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.

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Details

Case: [2020] FCCA 2230
Decision Date: 13 August 2020

CaseChat Overview and Summary

Alk17 sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a Protection (Class XD) visa. The application was heard by Judge Riethmuller in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Immigration Assessment Authority (IAA) had erred in law in its assessment of Alk17's protection visa application. Specifically, the Court was required to determine if the IAA had failed to consider relevant matters or had considered irrelevant matters in reaching its decision, thereby vitiating the lawfulness of that decision.

Judge Riethmuller found that the IAA's decision was not affected by any error of law. The Court concluded that the IAA had properly considered the evidence before it and had not failed to address any material issues. The Court noted that the IAA's role was to assess the facts of the case, and that there were no matters of principle raised that would warrant intervention by way of judicial review.

The application for judicial review was accordingly dismissed.

Orders