APL18 v Minister for Home Affairs - [2019] FCCA 1668

FEDERAL CIRCUIT COURT OF AUSTRALIA

APL18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1668

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant not believed – whether the review by the Immigration Assessment Authority was procedurally unfair or unreasonable or whether the Authority was biased considered – whether the Authority breached s.473DD of the Migration Act 1958 (Cth) considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5, 5H, 36, 473CB, 473DC, 473DD

Cases cited:

Applicant A v Minister for Immigration (1997) 190 CLR 225

AQU17 v Minister for Immigration (2018) 162 ALD 442

Chan v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379

CHF16 v Minister for Immigration (2017) 257 FCR 148; [2017] FCAFC 192

DHV16 v Minister for Immigration & Anor [2017] FCCA 349

Minister for Immigration v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176

Minister for Immigration v CLV16 (2018) 260 FCR 482; [2018] FCAFC 80

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

Semunigus v Minister for Immigration [1999] FCA 422

Applicant:

APL18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 328 of 2018

Judgment of:

Judge Driver

Hearing date:

17 June 2019

Delivered at:

Sydney

Delivered on:

5 September 2019

REPRESENTATION

Solicitors for the Applicant:

Mr N Daawar of Ariana Defence Lawyers

Counsel for the Respondents:

Mr H P T Bevan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed on 9 February 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 328 of 2018

APL18

Applicant

And

MINISTER FOR HOME 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 18 January 2018. 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 Minister’s initial outline of legal submissions filed on 23 November 2018.
The applicant, a citizen of Iran, arrived at Christmas Island on 11 March 2013, as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 193
On 31 March 2016, the applicant applied for a SHEV,[2] which was refused by the delegate on 26 May 2017.[3] On 31 May 2017, the matter was referred to the Authority.[4] On 27 June 2017, the Authority received written submissions from the applicant.[5] On 3 September 2017 and 27 December 2017, the applicant provided further documents to the Authority.[6]
[2] Safe Haven Enterprise Visa
[3] CB 77-113; 193-208
[4] CB 210
[5] CB 217-221
[6] CB 223-229
On 18 January 2018, the Authority affirmed the decision under review.[7]
[7] CB 232-244

Applicant’s claims

The applicant’s claims for protection were set out in a statutory declaration accompanying his visa application.[8] In summary, 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: [2019] FCCA 1668
Decision Date: 5 September 2019

CaseChat Overview and Summary

The applicant, APL18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. APL18 claimed to fear harm if returned to Iran. The IAA had not believed the applicant's claims, leading to the refusal.

The central legal issues before Judge Driver were whether the IAA's review of APL18's protection visa application was procedurally unfair, unreasonable, or affected by bias. The court was also asked to consider whether the IAA had breached section 473DD of the *Migration Act 1958* (Cth).

Judge Driver found no jurisdictional error in the IAA's decision-making process. The court's reasoning, though not detailed in the provided text, ultimately concluded that the IAA's review met the required legal standards and that the applicant's claims of procedural unfairness, unreasonableness, or bias were not substantiated. Consequently, the application for judicial review was dismissed.

Orders