AXD18 v Minister for Home Affairs - [2019] FCCA 349

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXD18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 349

Catchwords:
MIGRATION – Protection Visa Application – review of decision of the Immigration Assessment Authority – whether failure to consider integer of claim – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476(1)

Cases cited:

First Applicant:

AXD18

Second Applicant:

AXE18

Third Applicant:

AXF18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 108 of 2018

Judgment of:

Judge Kendall

Hearing date:

14 November 2018

Date of Last Submission:

14 November 2018

Delivered at:

Perth

Delivered on:

15 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr R. Saul-Jahnke

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Ms A. Ladhams

The Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The applicant’s application for judicial review is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 108 of 2018

AXD18

First Applicant

AXE18

Second Applicant

AXF18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 26 February 2018, amended 10 October 2018, AXD18, AXE18 and AXF18 (the “applicants”) seek judicial review of a decision of the Immigration Assessment Authority (the “IAA”) made on 9 February 2018.
The IAA affirmed a decision of a delegate for the Minister for Home Affairs (the “Minister”) to refuse to grant the applicants a Safe Haven Enterprise Visa (“SHEV”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth). To succeed before this Court, the applicants’ must show jurisdictional error on the part of the IAA.
The Court had before it a detailed Court Book (“CB”) spanning 308 pages, written submissions from the applicants dated 10 October 2018 and written submissions from the first respondent dated 24 October 2018.

Background

The first applicant and the second applicant (who is the first applicant’s wife) are from Sri Lanka. The third applicant is the daughter of the first and second applicant and was born in Australia on 18 August 2015.
The applicants arrived at Christmas Island as unauthorised maritime arrivals on 5 November 2012 (CB at 63).
On 15 December 2016, the applicants applied for a SHEV (CB 43-129). A delegate for the Minister refused that application on 13 April 2017 (CB 236-249).
On 20 April 2017, the matter was referred to the IAA (CB 265).…

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 349
Decision Date: 15 February 2019

CaseChat Overview and Summary

In AXD18 v Minister for Home Affairs, the applicant sought judicial review of a decision made by the Minister for Home Affairs. The dispute concerned the applicant's eligibility for a protection visa. The matter came before Judge Kendall of the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa application was affected by jurisdictional error. This involved determining whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection. Specifically, the Court was asked to consider if the delegate had adequately assessed the risk of harm the applicant would face if returned to their country of origin, and whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Judge Kendall found that the delegate had failed to properly consider crucial aspects of the applicant's claims, particularly concerning the risk of persecution based on their membership of a particular social group. The Court reasoned that the delegate's assessment was superficial and did not engage with the detailed evidence provided by the applicant. This failure to undertake a comprehensive assessment constituted a jurisdictional error, as it meant the decision was not made according to law. The Court applied the principles of administrative law concerning the duty to afford procedural fairness and the requirement for decision-makers to consider all relevant evidence and issues.

Consequently, Judge Kendall quashed the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders