AZZ18 v Minister for Home Affairs - [2019] FCA 844

FEDERAL COURT OF AUSTRALIA
AZZ18 v Minister for Home Affairs [2019] FCA 844

Appeal from: AZZ18 v Minister for Home Affairs [2018] FCCA 3949

File number: WAD 618 of 2018

Judge: COLVIN J

Date of judgment: 7 June 2019

Catchwords: MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for review of decision of the Immigration Assessment Authority affirming delegate's decision to refuse protection visa - where appellant's wife had been granted protection visa - whether unreasonableness shown by reason of that outcome - whether apprehended bias of the Authority by reason of prejudicial material placed before it relating to the appellant's criminal conviction - where appellant made a submission to the Authority explaining his offending - appeal allowed

Legislation:
Migration Act 1958 (Cth) ss 5M, 36(1c), 46, 473CA, 473CB, 473DA, 473DB, 473DD, 473DE, 473FA, 501

Migration Regulations 1994 (Cth) reg 2.07 Schedule 1 Item 1404

Cases cited:
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88

BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35

CKV16 v Minister for Immigration and Border Protection [2019] FCA 342

CNY17 v Minister for Immigration and Border Protection [2018] FCAFC 159

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438

Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135

Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

Date of hearing: 22 May 2019

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 77

Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent: Mr PR MacLiver

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

WAD 618 of 2018

BETWEEN:
AZZ18

Appellant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY'

Second Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

7 JUNE 2019

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court be set aside.
3.The decision of the second respondent made on 20 January 2018 to affirm the decision not to grant the appellant a protection visa be set aside and the matter be remitted to the Authority, differently constituted, for determination according to law.
4.The first respondent do pay the appellant's costs of the appeal and of the proceedings in the Federal Circuit Court to be assessed if not agreed.

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] FCA 844
Decision Date: 7 June 2019

CaseChat Overview and Summary

In the case of AZZ18 v Minister for Home Affairs, the appellant challenged the decision of the Federal Circuit Court which had dismissed an application for review of a decision made by the Immigration Assessment Authority. The Authority had upheld the delegate's decision to refuse the appellant a protection visa. The appellant's wife had been granted a protection visa, which was a point of contention in the case. The appellant argued that the decision was unreasonable and that there was an apprehended bias due to prejudicial material related to the appellant's criminal conviction being considered by the Authority.

The legal issues before the court were whether the decision was unreasonable and whether there was an apprehended bias in the Authority due to the prejudicial material concerning the appellant's criminal conviction. The appellant claimed that the Authority's consideration of his criminal history contributed to the refusal of his visa application and that this was a factor in any bias. The Minister defended the decision by arguing that the material had been voluntarily presented by the appellant himself.

The court found that the appellant's claim of bias was valid given the context in which the information about his criminal history was presented to the Authority. The court accepted that the appellant had a legitimate concern that his criminal history was a factor in the refusal of his visa application. The court did not accept the Minister's argument that the submission failed to recognise the context in which the appellant made his written submission about his offending to the Authority. Consequently, the appeal was allowed, and the decision of the Federal Circuit Court was set aside. The matter was remitted to the Authority, differently constituted, for a new determination according to law. The appellant was also awarded costs for the appeal and the proceedings in the Federal Circuit Court.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the Federal Circuit Court be set aside.

3. The decision of the second respondent made on 20 January 2018 to affirm the decision not to grant the appellant a protection visa be set aside and the matter be remitted to the Authority, differently constituted, for determination according to law.

4. The first respondent do pay the appellant's costs of the appeal and of the proceedings in the Federal Circuit Court to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view the matters stated by the appellant on appeal do not take the matter any further than the position before the primary judge. At that time, the appellant's submission to the Authority was before the Court. There was a claim of bias which was addressed by the Minister on the basis that it raised a claim of apprehended bias by reason of the information concerning the appellant's offending and conviction being before the Authority. Part of the answer to the claim of bias that was advanced by the Minister to the primary judge was that, in any event, the relevant material had been presented to the Authority by the appellant voluntarily. The same submission is made on appeal. However, that submission fails to recognise the context in which the appellant made his written submission about his offending to the Authority. The decision of the delegate recounted the circumstances that led to the imprisonment of the appellant. In those circumstances, it is not surprising that the appellant may have been concerned that the offending was part of the reason why his visa application was refused. That is apparent from his submission and there is no need to consider, in addition, the matters advanced informally by the appellant.Conclusion For those reasons, I would uphold ground 6 of the appeal, set aside the decision of the primary judge and remit the matter to the Authority, differently constituted, for adjudication according to law.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	AZZ18 v Minister for Home Affairs [2018] FCCA 3949
File number:	WAD 618 of 2018
Judge:	COLVIN J
Date of judgment:	7 June 2019
Catchwords:	MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for review of decision of the Immigration Assessment Authority affirming delegate's decision to refuse protection visa - where appellant's wife had been granted protection visa - whether unreasonableness shown by reason of that outcome - whether apprehended bias of the Authority by reason of prejudicial material placed before it relating to the appellant's criminal conviction - where appellant made a submission to the Authority explaining his offending - appeal allowed
Legislation:	Migration Act 1958 (Cth) ss 5M, 36(1c), 46, 473CA, 473CB, 473DA, 473DB, 473DD, 473DE, 473FA, 501 Migration Regulations 1994 (Cth) reg 2.07 Schedule 1 Item 1404
Cases cited:	ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 CKV16 v Minister for Immigration and Border Protection [2019] FCA 342 CNY17 v Minister for Immigration and Border Protection [2018] FCAFC 159 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Date of hearing:	22 May 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	77
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr PR MacLiver
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs