AZAFF v Minister for Immigration - [2015] FCCA 1133

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFF v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1133

Catchwords:
MIGRATION – Judicial review – Independent protection assessment – claim for refugee status – whether decision unreasonable, illogical or irrational – allegation of lack of procedural fairness – allegation of lack of intelligibility in decision-making process – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth),ss.5AA; 46A; 476

Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Rodriguez v Telstra Corporation Limited [2012] FCA 30
Clark v Ryan (1960) 103 CLR 486
R v Bonthyon (1984) 38 SASR 45
R v Leung & Wong [1999] NSWCCA 287

AZABM v Minister for Immigration & Citizenship [2012] FCA 860

Aala (2000) 204 CLR 82

VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88

Minister for Immigration & Multicultural Affairs: ex-parte Lam (2003) 195 ALR 502
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

AZAFF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

INDEPENDENT PROTECTION ASSESSMENT REVIEWER ROGER FORDHAM

File Number:

ADG 289 of 2014

Judgment of:

Judge Brown

Hearing date:

6 April 2015

Date of Last Submission:

6 April 2015

Delivered at:

Adelaide

Delivered on:

4 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr O’Leary

Solicitors for the Applicant:

Paula Denise Stirling

Counsel for the Respondents:

Mr d'Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 1 August 2014 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 289 of 2014

AZAFF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

INDEPENDENT PROTECTION ASSESSMENT REVIEWER ROGER FORDHAM

Second Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment should be read in conjunction with the reasons provided in the case of AZAFG. To all intents and purposes, the reasons are identical as they deal with the same factual situation and legal contentions.
The applications were listed for hearing together with Mr O’Leary of counsel appearing for both AZAFF and AZAFG and with Mr d’Assumpcao appearing for the Minister for Immigration & Border Protection “the Minister”.
AZAFF “the applicant” seeks the issue of constitutional writs to quash a recommendation of an independent protection assessor, Mr Fordham made on 12 March 2012.
Mr Fordham, “the IPA” recommended to the Minister that the applicant not be recognised as a person to whom Australia holds protection obligations pursuant to the Refugees Convention.
AZAFF and AZAFG are sisters born on 5 November 1997 and 30 November 2001 respectively. Accordingly both applicants are minors. They have instituted these proceedings through their litigation guardian, Sister Mary Symonds, a member of the Order of the Sisters of Mercy.
The applicants arrived together in Australia, at…

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: [2015] FCCA 1133
Decision Date: 4 May 2015

CaseChat Overview and Summary

The applicant, AZAFF, sought judicial review of a decision made by the Minister for Immigration concerning an independent protection assessment and a claim for refugee status. The matter came before Judge Brown of the Federal Circuit and Family Court of Australia.

The core legal issues before the Court were whether the Minister's decision was unreasonable, illogical, or irrational, and whether there had been a lack of procedural fairness in the decision-making process. AZAFF also contended that the decision-making process lacked intelligibility.

Judge Brown found that no jurisdictional error had been established. The Court's reasoning focused on whether the Minister's assessment and subsequent decision were vitiated by unreasonableness, irrationality, or a failure to afford procedural fairness. The Court examined the evidence and the decision-making process to determine if these grounds for review were made out.

Ultimately, the Court concluded that AZAFF had not demonstrated jurisdictional error, and therefore, the application for judicial review was dismissed.

Orders