AML18 v Minister for Immigration - [2020] FCCA 525

FEDERAL CIRCUIT COURT OF AUSTRALIA

AML18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 525

Catchwords:
MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether IAA erred when considering new information – whether IAA was biased – whether IAA asked a wrong question – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 473CA, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB

Cases cited:

CNY17 v Minister for Immigration & Border Protection [2019] HCA 50
Craig v State of South Australia (1995) 184 CLR 163
CVV16 v Minister for Home Affairs [2019] FCA 1890

DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784

Applicant:

AML18

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 62 of 2018

Judgment of:

Judge Kendall

Hearing date:

10 March 2020

Date of Last Submission:

10 March 2020

Delivered at:

Perth

Delivered on:

13 March 2020

REPRESENTATION

Applicant:

In Person

Counsel for the First Respondent:

Ms J Tran

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 62 of 2018

AML18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 8 January 2018.
The IAA affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise visa (the “visa”).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
Before the Court is the applicant’s judicial review application filed 1 February 2018, an affidavit of the applicant affirmed 1 February 2018, an affidavit of the applicant affirmed 13 May 2018, an affidavit of the applicant affirmed 6 March 2020, a Court Book (“CB”) numbering 256 pages (marked as Exhibit 1) and an outline of written submissions from the Minister dated 18 February 2020.
The Court confirmed with the applicant that he had received…

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 525
Decision Date: 13 March 2020

CaseChat Overview and Summary

The applicant, AML18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise visa. The core of the dispute revolved around allegations that the IAA had erred in its consideration of new information provided by the applicant, exhibited bias in its assessment, and posed an inappropriate question during the review process. The matter was heard by Judge Kendall in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the IAA had committed jurisdictional error in its assessment of AML18's visa application. Specifically, the court had to consider whether the IAA's handling of new information amounted to an error of law, whether the IAA's conduct demonstrated actual or apprehended bias, and whether the question posed by the IAA indicated a misunderstanding of its legal obligations or the nature of the review.

Judge Kendall found that the IAA had not committed jurisdictional error. The court reasoned that the IAA was entitled to assess the weight and relevance of the new information provided by the applicant, and that its decision to not give that information decisive weight did not constitute an error of law. Furthermore, the court found no evidence of actual or apprehended bias in the IAA's conduct or in the question it posed, concluding that the question was a legitimate part of the IAA's process of assessing the applicant's claims.

Consequently, the application for judicial review was dismissed.

Orders