AZZ18 v Minister for Home Affairs - [2018] FCCA 3949

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZZ18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3949

Catchwords:
MIGRATION – Protection Visa – decision of Immigration Assessment Authority – Protection Visa denied – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.12.02, 12.03
Migration Act 1958 (Cth), ss.5(1), 5H, 5J(1), 36(2)(a), 36(2A), 473CA, 473CB, 473DA(1), 473DC(1), 473DD, 473GA, 473GB, 476(1), Pt.7AA

Cases cited:

Applicant:

AZZ18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 120 of 2018

Judgment of:

Judge Kendall

Hearing date:

13 December 2018

Date of Last Submission:

13 December 2018

Delivered at:

Perth

Delivered on:

13 December 2018

REPRESENTATION

The applicant in person

Counsel for the first respondent:

Ms M. Jackson

The second respondent submitting appearance, save as to costs

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The applicant’s application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 120 of 2018

AZZ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

Introduction

The applicant is a Tamil male of Sri Lankan citizenship.
On 31 May 2013, the applicant arrived at Christmas Island as an unauthorised maritime arrival.
On 31 March 2017, the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”).
The applicant provided a statutory declaration with his SHEV application. In that application, the applicant set out his claims to fear harm on the basis of his involvement with the Liberation Tigers of Tamil Eelam (the “LTTE”). He explained that he had suffered harm from the Criminal Investigation Division (the “CID”) and the Sri Lankan Army (the “SLA”) during the civil war in Sri Lanka.
The applicant’s SHEV application was refused by a Ministerial Delegate (the “Delegate”) on 5 December 2017. The Delegate was not satisfied that the applicant had a profile that would indicate that he would face a real chance of serious harm or a real risk of significant harm in Sri Lanka.
The matter was then referred to the Immigration Assessment Authority (the “IAA”) on 8 December 2017.
On 30 January 2018, the IAA affirmed the Delegate’s decision.
By application filed in this Court on 1 March 2018, the applicant seeks…

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: [2018] FCCA 3949
Decision Date: 13 December 2018

CaseChat Overview and Summary

The applicant, AZZ18, sought judicial review of a decision made by the Minister for Home Affairs to refuse to grant a protection visa. The dispute concerned the Minister's assessment of AZZ18's claims for protection, specifically relating to the risk of harm AZZ18 might face if returned to their country of origin. The matter was heard in the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. This involved determining whether the Minister had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing AZZ18's protection claims, thereby vitiating the decision-making process. The Court also considered whether the Minister's assessment of the evidence presented by AZZ18 was reasonable and whether the ultimate conclusion reached was supported by the material before the decision-maker.

Judge Kendall found that the Minister had failed to properly consider crucial aspects of AZZ18's evidence regarding the specific risks of harm. The Court reasoned that a failure to adequately assess and weigh all relevant evidence, particularly that which establishes a real chance of significant harm, constitutes a failure to exercise the power conferred by the relevant legislation according to its terms. The legal principle applied was that a decision-maker must engage meaningfully with the evidence presented by an applicant for protection and cannot simply disregard or minimise claims that are supported by credible material.

Consequently, the Court found that the Minister's decision was affected by jurisdictional error. The Court quashed the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders