Avo19 v Minister for Immigration - [2019] FCCA 3026

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVO19 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3026

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5, 5AA, 36, 473BB, 473CA, 473DB, 473DC, 473DD

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111
BVZ16 v Minister for Immigration [2017] FCA 958
CSR16 v Minister for Immigration [2018] FCA 474
DLB17 v Minister for Home Affairs [2018] FCAFC 230
Minister for Immigration v CRY16 [2017] FCAFC 210
Minister for Immigration v Li [2013] HCA 18
Minister for Immigration v Singh [2014] FCAFC 1
MZYXS v Minister for Immigration [2013] FCA 614
Plaintiff M174/2016 v Minister for Immigration [2018] HCA 174

Applicant:

AVO19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 480 of 2019

Judgment of:

Judge Driver

Hearing date:

22 October 2019

Delivered at:

Sydney

Delivered on:

22 October 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr H Gao of Australian Government Solicitor

INTERLOCUTORY ORDERS

The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 480 of 2019

AVO19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 27 February 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts concerning the applicant’s claims for protection and the Authority decision on them are set out in the Minister’s outline of submissions filed on 15 October 2019.
The applicant is a citizen of Bangladesh who arrived in Australia on 31 January 2013 as an unauthorised maritime arrival.[1] On 8 February 2013, the applicant attended an Irregular Maritime Arrival Entry interview (entry interview), at which he claimed that he departed Bangladesh for economic reasons.[2]
[1] Relevant Documents (RD) 46
[2] RD 11, 17
On 23 March 2017, the applicant applied for a Safe Haven Enterprise Visa (SHEV) in which he made the following claims:[3]
a)he and his family were supporters of the Bangladesh Nationalist Party (BNP). He was a low level member of the BNP and he had a good relationship with the chairman of the Thana. He would listen to the grievances expressed by…

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 3026
Decision Date: 22 October 2019

CaseChat Overview and Summary

The applicant, Avo19, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The Minister for Immigration was the respondent. The matter came before Driver J in the Federal Court of Australia.

The primary legal issue before the Court was whether the IAA had made a jurisdictional error in its assessment of Avo19's protection visa application. This question arose in the context of an interlocutory dismissal of a show cause application, which suggested that Avo19's case lacked an arguable basis for jurisdictional error.

Driver J found that Avo19 had not demonstrated an arguable case of jurisdictional error. The Court applied the principles governing judicial review of administrative decisions, focusing on whether the IAA had acted within its legal powers. Having concluded that no arguable jurisdictional error was established, the Court dismissed the application.

Orders