ASZ17 v Minister for Immigration - [2018] FCCA 2863

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASZ17 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2863

Catchwords:

MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – applicants Vietnamese Catholics – application for protection visa – fast track applicants – jurisdictional error – inconsistencies in evidence – breach of procedural fairness – applicants not invited to comment or give further evidence about inconsistencies identified by IAA – legal unreasonableness – conclusions reached by IAA said to be illogical or unreasonable – matters to be considered – no error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), Part 7AA. ss. 5; 5(1); 5H; 5J; 36(2)(a); 36(2)(aa); 46A; 46A(1); 46A(2); 65; 473BA; 473CA; 473CB; 473CC; 473DA; 473DB; 473DC; 473DC(1); 473DC(2); 473DC(3).
Migration Regulations 1994, Schedule 2

Cases cited:

First Applicant:

ASZ17

Second Applicant:

ATA17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 64 of 2017

Judgment of:

Judge Brown

Hearing date:

20 June 2018

Date of Last Submission:

20 June 2018

Delivered at:

Adelaide

Delivered on:

16 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Barnes

Solicitors for the Applicant:

Connolly & Co

Counsel for the First Respondent:

Ms Wells

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

Submitting appearance

ORDERS

The application filed 22 February 2017 be dismissed.
The applicants pay the First Respondents costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 64 of 2017

ASZ17

First Applicant

ATA17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants in these proceedings seek judicial review of a determination of the Immigration Assessment Authority,[1] made on 25 January 2017, not to grant them Safe Haven Enterprise Visas,[2] pursuant to the provisions of the Migration Act 1958.[3]
[1]…

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 2863
Decision Date: 16 November 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by the Immigration Assessment Authority (IAA) regarding a protection visa application. The applicants, who were Vietnamese Catholics, had applied for a protection visa under the fast-track assessment process.

The primary legal issues before the Court were whether the IAA had committed jurisdictional error by breaching procedural fairness, and whether its conclusions were legally unreasonable. Specifically, the applicants contended that they were not afforded an opportunity to comment on or provide further evidence concerning inconsistencies identified by the IAA in their application.

Judge Brown found that the IAA's decision did not involve jurisdictional error. The Court reasoned that the procedural fairness obligations owed to fast-track applicants did not extend to requiring the IAA to invite comment on every perceived inconsistency in the evidence. The Court also found that the conclusions reached by the IAA were not legally unreasonable, as they were open to be made on the evidence before the Authority.

The application for judicial review was accordingly dismissed.

Orders