AWW17 v Minister for Immigration - [2019] FCCA 2681

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWW17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2681

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority (“IAA”) – whether the IAA erred by failing to have regard to the criteria in s.473DD(b) of the Migration Act 1958 (Cth) – no jurisdictional error revealed – application dismissed.

PRACTICE & PROCEDURE – Whether the solicitor’s conduct should be referred pursuant to the Legal Profession Uniform Law Act 2014 (NSW).

Legislation:

Migration Act 1958 (Cth), ss.5, 473CB, 473DD, 473FB, 476, pt.7AA

Federal Circuit Court Rules 2001 (Cth), r.13.01

Legal Profession Uniform Law Act 2014 (NSW), s.296

Cases cited:

M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16;

(2018) 92 ALJR 481; (2018) 353 ALR 600

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958;

(2017) 254 FCR 221; 2017 159 ALD 417

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;

(2017) 257 FCR 111; (2017) 158 ALD 198

AUS17 v Minister for Immigration & Anor [2017] FCCA 1986

BRE16 v Minister for Immigration & Anor [2018] FCCA 1412

AYU16 v Minister for Immigration & Anor [2018] FCCA 2890

DGB16 v Minister for Immigration & Anor [2019] FCCA 248

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3;

(2019) 93 ALJR 252 [2019] HCA 3; (2019) 93 ALJR 252: (2019) 363 ALR 599;

(2019) 163 ALD 38

Hossain v Minister for Immigration and Border Protection [2018] HCA 34;

(2018) 92 ALJR 780; (2018) 359 ALR 1

BZC17 v Minister for Immigration and Border Protection [2018] FCA 902

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127

DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33;

(2018) 260 FCR 260

Applicant:

AWW17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 625 of 2017

Judgment of:

Judge Nicholls

Hearing date:

10 September 2019

Date of Last Submission:

16 September 2019

Delivered at:

Sydney

Delivered on:

23 September 2019

REPRESENTATION

Representative for the Applicant:

Mr S. Hodges

Solicitors for the Applicant:

Hodges Legal

Counsel for the Respondents:

Mr J. Kay J Hoyle

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The name of the first respondent is amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The application made on 3 March 2017 and as amended is dismissed.
The applicant pay the first respondent’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 625 of 2017

AWW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 3 March 2017 and amended on 5 October 2017…

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 2681
Decision Date: 23 September 2019

CaseChat Overview and Summary

The applicant, AWW17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The dispute concerned whether the IAA had erred in its assessment of the applicant's case by failing to consider the criteria stipulated in section 473DD(b) of the *Migration Act 1958* (Cth). The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the IAA had committed a jurisdictional error by failing to have regard to the criteria set out in section 473DD(b) of the *Migration Act 1958* (Cth) when reviewing the applicant's case. A secondary issue arose concerning whether the conduct of the applicant's solicitor warranted a referral under the *Legal Profession Uniform Law Act 2014* (NSW).

Judge Nicholls found that the IAA had not committed a jurisdictional error. The Court's reasoning, based on the material before it, indicated that the IAA had properly considered the relevant criteria. Consequently, the application for review was dismissed. The Court also determined that there was no basis to refer the solicitor's conduct for further investigation under the *Legal Profession Uniform Law Act 2014* (NSW).

Orders