ASB17 v Minister for Immigration - [2018] FCCA 2391

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASB17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2391

Catchwords:
MIGRATION – Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – application dismissed.

Legislation:
Migration Act 1958 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases cited:

Applicant:

ASB17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 329 of 2017

Judgment of:

Judge Mercuri

Hearing date:

26 April 2018

Date of Last Submission:

26 April 2018

Delivered at:

Melbourne

Delivered on:

31 August 2018

REPRESENTATION

Counsel for the applicant:

Mr Maloney

Solicitors for the applicant:

Victoria Legal Aid

Counsel for the respondents:

Mr Wood

Solicitors for the respondents:

Mills Oakley

ORDERS

The applicant’s application filed on 20 February 2017 and amended on 15 February 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 329 of 2017

ASB17

Applicant

And

MINISTER FOR IMMIGRATION AND 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 second respondent, the Immigration Assessment Authority (“the IAA”). The IAA affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
The applicant is a Sri Lankan national. The applicant applied for a SHEV on 21 January 2016.[1] The Minister’s delegate refused to grant the applicant a visa on 22 September 2016.[2]
[1] Court book pages 89 to 93.
[2] Court book pages 117 to 127.
As required by section 473CA of the Migration Act 1958 (Cth) (“the Act”), the applicant’s application was referred to the IAA for review.[3] The IAA affirmed the delegate’s decision on 23 January 2017.
[3] Court book pages 130 to 138.
The applicant was born in Vavuniya in the Northern Province of Sri Lanka on 21 February 1997.[4] He is a Hindu man of Tamil ethnicity.[5] He left Sri Lanka when he was fifteen years of age and arrived at 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: [2018] FCCA 2391
Decision Date: 31 August 2018

CaseChat Overview and Summary

The applicant, ASB17, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Afghanistan, alleged that they had been persecuted in their home country due to their ethnicity and political opinions. The Minister's decision was made under s 48B of the *Migration Act 1958* (Cth), which prevents certain non-citizens who have had a visa application refused from applying for a protection visa while remaining in Australia. The matter came before Judge Mercuri in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims, thereby vitiating the decision-making process. The applicant contended that the delegate had not properly considered the evidence relating to their ethnicity and political beliefs, which formed the basis of their protection claims.

Judge Mercuri found that the delegate's assessment of the applicant's claims had been inadequate. The reasons provided for the refusal did not sufficiently engage with the specific evidence presented by the applicant regarding the persecution they feared. The Court held that a failure to properly consider all relevant evidence, particularly evidence that directly bears on the grounds for protection, constitutes a failure to exercise the power conferred by the legislation according to law. This failure amounted to jurisdictional error.

Consequently, the Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders