BDR18 v Minister for Home Affairs - [2018] FCCA 2737

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDR18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2737

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority failed to consider all of the applicant’s claims – whether the Authority failed to consider an articulated claim – whether the Authority failed to exercise its power under s 473DC of the Act – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DC, 473GD, 476

Cases cited:

CRY16 v Minister for Immigration and Border Protection [2017] FCAFC 210 DFW16 v Minister for Immigration and Border Protection [2018] FCA 746

Applicant:

BDR18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 635 of 2018

Judgment of:

Judge Street

Hearing date:

17 July 2018

Date of Last Submission:

17 July 2018

Delivered at:

Sydney

Delivered on:

17 July 2018

REPRESENTATION

Counsel for the Applicant:

Ms J Ambikapathy

Solicitors for the Applicant:

D'Ambra Murphy Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

Grant leave to the applicant to rely upon the amended application dated 17 July 2018 filed in Court and the Court dispenses with the need for the filing of an electronic copy of the same.
Time is extended for the bringing of proceedings under s 477 of the Migration Act 1958 (Cth) up to and including 9 March 2018.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 635 of 2018

BDR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 20 December 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 27 August 2012. The applicant was found to be Hazara Shia from Ghazni province and on one occasion was stopped by the Taliban at a checkpoint and questioned about a dictionary in his possession.
On 13 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate accepted that there was a real chance the applicant will be persecuted on account of his ethnicity if he were to return and travel on the roads to his home area. However, the delegate found that the real risk of persecution did not relate to all areas of Afghanistan and found that it was reasonable for the applicant to relocate to Kabul.

The Authority

On 16 March 2017, 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: [2018] FCCA 2737
Decision Date: 17 July 2018

CaseChat Overview and Summary

The applicant, BDR18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The dispute concerned whether the IAA had adequately considered all claims made by the applicant and whether it had failed to exercise its power under section 473DC of the *Migration Act 1958* (Cth). The matter was heard by Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the IAA had committed a jurisdictional error by failing to consider all of the applicant's articulated claims, and whether the IAA had failed to exercise its power under section 473DC of the *Migration Act 1958* (Cth).

Judge Street found that the IAA had considered the claims presented by the applicant. The Court determined that the applicant had not established that the IAA failed to consider any articulated claim or that it failed to exercise its power under section 473DC. Consequently, no jurisdictional error was made out.

The amended application was dismissed.

Orders