AZR19 v Minister for Immigration - [2019] FCCA 3455

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZR19 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3455

Catchwords:
MIGRATION – Application for a Safe Haven Enterprise Visa (SHEV) – inconsistencies in and implausibility of applicant’s claims leading to adverse findings as to credibility – application of s. 473DD of the Act – no jurisdictional error – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB, 473DD.

Cases cited:

MZJIO v Minister for Immigration and Border Protection [2014] FCAFC 80.

BMP17 v Minister for Home Affairs [2019] FCA 112.

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

DLB17 v Minister for Home Affairs [2018] FCAFC 230.

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

DKF17 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCA 1963.

Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant:

AZR19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 232 of 2019

Judgment of:

Judge Egan

Hearing date:

1 November 2019

Date of Last Submission:

1 November 2019

Delivered at:

Brisbane

Delivered on:

29 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr G. Rebetzke

Solicitors for the Applicant:

RAILS

Solicitors for the Respondents:

Mr S. Cummings of Sparke Helmore

ORDERS

The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Amended Application for Review filed on 25 June 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 232 of 2019

AZR19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia by boat as an unauthorised maritime arrival in November 2012.
The applicant participated in an entry interview at Christmas Island on 16 January 2013.
On 22 March 2017 the applicant made application for a Safe Haven Enterprise Visa (SHEV). He attended an interview before the Minister’s delegate on 26 September 2018.
The applicant’s SHEV application was refused by a delegate of the Minister on 6 November 2018. After refusal, the delegate’s decision was referred to the Immigration Assessment Authority (the Authority) for review.
On 7 December 2018 the applicant provided further submissions and material to the Authority.
On 4 February 2019 the applicant’s lawyers provided a statutory declaration to the Authority which was said to be “new information”. [1]
[1] Court Book (CB) pages 124 - 128
On 1 March 2019, the Authority affirmed the delegate’s decision to refuse the application for the SHEV.
On 10 March 2019 the…

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 3455
Decision Date: 29 November 2019

CaseChat Overview and Summary

The applicant, AZR19, sought judicial review of a decision by the Minister for Immigration to refuse their application for a Safe Haven Enterprise Visa (SHEV). The dispute centred on adverse credibility findings made by the primary decision-maker regarding the applicant's claims, which were upheld on review. The matter came before Judge Egan of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the primary decision-maker had committed a jurisdictional error in assessing the applicant's claims and making adverse credibility findings. This involved considering the application of section 473DD of the Migration Act 1958 (Cth), which pertains to the review of decisions by the Administrative Appeals Tribunal.

Judge Egan found that the primary decision-maker had adequately considered the applicant's evidence and had made findings of fact that were open to them. The Court determined that the inconsistencies and implausibility identified in the applicant's claims were sufficient to justify the adverse credibility findings. Consequently, the Court concluded that no jurisdictional error had occurred in the decision-making process.

The application for review was therefore dismissed.

Orders