AZAFG v Minister for Immigration - [2015] FCCA 1134

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFG v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1134

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:

AZAFG

First Respondent:

MINISTER FOR IMMIGRATION BORDER PROTECTION

Second Respondent:

INDEPENDENT PROTECTION ASSESSMENT REVIEWER ROGER FORDHAM

File Number:

ADG290 of 2014

Judgment of:

Judge Brown

Hearing date:

23 March 2015

Date of Last Submission:

23 March 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

ADG290 of 2014

AZAFG

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 AZAFF. 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”.
AZAFG “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 Christmas Island, by boat…

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 1134
Decision Date: 4 May 2015

CaseChat Overview and Summary

The applicant, AZAFG, sought judicial review of a decision made by the Minister for Immigration concerning an independent protection assessment. The core of the dispute revolved around whether the Minister's decision to refuse refugee status was unreasonable, illogical, or irrational, and whether the applicant had been denied procedural fairness or faced an unintelligible decision-making process. The matter was heard by Judge Brown.

The court was required to determine whether the Minister's decision was affected by jurisdictional error. Specifically, this involved assessing whether the decision was so unreasonable that it lacked an intelligible justification, or whether the process by which the decision was reached lacked the necessary procedural fairness.

Judge Brown found that no jurisdictional error had been established. The reasoning applied was that the decision-making process, despite the applicant's contentions, was not demonstrably unreasonable, illogical, or irrational to the point of jurisdictional error. Furthermore, the court concluded that the applicant had not been denied procedural fairness, and the decision-making process was sufficiently intelligible.

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

Orders

Orders of the court

1. The application filed on 1 August 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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