Axs19 v Minister for Immigration - [2019] FCCA 3353

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXS19 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3353

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in the Immigration Assessment Authority’s decision – Amended Application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25D
Migration Act 1958 (Cth), ss.36, 46A, 473DD

Cases cited:

Aon Risk Services v ANU (2009) 239 CLR 175
Bhangu v Minister for Immigration and Border Protection [2017] FCA 108
BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114
CAC19 v Minister for Home Affairs & Anor [2019] FCCA 2570

GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
SZIFI v Ministers for Immigration and Multicultural & Indigenous Affairs [2007] FCA 63

SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121

Applicant:

AXS19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 84 of 2019

Judgment of:

Judge Kemp

Hearing date:

17 October 2019

Date of Last Submission:

17 October 2019

Delivered at:

Perth

Delivered on:

22 November 2019

REPRESENTATION

Solicitor for the Applicant:

Chisholm Law

Counsel for the First Respondent:

Ms Taggart

Solicitors for the First Respondent:

Sparke Helmore

THE COURT ORDERS THAT

Leave be granted to the First Respondent to amend its title to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Leave be granted to the Applicant to rely on his Amended Application filed 17 October 2019.
The Applicant’s Amended Application filed 17 October 2019 be dismissed.
The Applicant pay the First Respondent’s costs of $500.00 in respect of the leave question.
The balance of the First Respondent’s costs are reserved for determination. The parties are to file and serve any written submissions as to costs within 21 days of today’s date. The Court will determine the issue of costs on the papers unless the parties wish to be heard orally.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 84 of 2019

AXS19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of background, the Applicant is a citizen of Afghanistan born on 31 December 1996.
On 27 May 2013, the Applicant arrived on Christmas Island as an unlawful maritime arrival.
On 17 June 2013, the Applicant was interviewed upon his arrival (“the arrival interview”).
On 4 July 2016, the Department notified the Applicant that the Delegate of the First Respondent (“the Delegate”) had lifted the bar under s.46A of the Migration Act 1958 (“the Act”) and invited him to apply for a Temporary Protection Visa (subclass 785) visa or Safe Have Enterprise (Subclass 790) visa (“SHEV”).
On 20 March 2017, the Applicant applied for a SHEV.
The Applicant’s claims for protection, are as…

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 3353
Decision Date: 22 November 2019

CaseChat Overview and Summary

The applicant, Axs19, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around whether the IAA's decision was affected by jurisdictional error.

The primary legal issue before the court was to determine whether the IAA had made a jurisdictional error in its assessment of the applicant's protection visa claim. This required the court to examine the IAA's decision-making process to ascertain if it had acted outside its legal authority or failed to observe the essential requirements of the law.

Judge Kemp found no jurisdictional error in the IAA's decision. The court's reasoning focused on the absence of any demonstrable failure by the IAA to consider relevant evidence or to apply the correct legal principles in assessing the applicant's claim for protection. Consequently, the amended application was dismissed.

Orders