BFC18 v Minister for Home Affairs - [2020] FCCA 510

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFC18 v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 510

Catchwords:
MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether IAA erred in not considering “new information” – whether the IAA failed to take into account a relevant consideration – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 5J, 36, 46A, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB, 476

Cases cited:

BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958
Craig v State of South Australia (1995) 184 CLR 163
CSR16 v Minister for Immigration & Border Protection [2018] FCA 474
DLB17 v Minister for Home Affairs [2018] FCAFC 230

DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784

GLD18 v Minister for Home Affairs [2020] FCAFC 2
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant:

BFC18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 140 of 2018

Judgment of:

Judge Kendall

Hearing date:

6 March 2020

Date of Last Submission:

6 March 2020

Delivered at:

Perth

Delivered on:

10 March 2020

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr M P Sunits

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 140 of 2018

BFC18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 15 February 2018.
The IAA affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (the “visa”).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the IAA fell into jurisdictional error.
The Court had before it an application for judicial review filed 11 March 2018, an affidavit from the applicant affirmed 17 January 2020, a Court Book (“CB”) numbering 303 pages (marked as Exhibit 1), correspondence from the Minister (which confirmed the Minister’s written outline of submissions was sent to the applicant’s nominated email address) (marked as Exhibit 2) and an outline of written submissions from the Minister dated 14 February 2020.
The applicant was unrepresented before the Court. The Court confirmed with him that he had received (and had with him) a copy…

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: [2020] FCCA 510
Decision Date: 10 March 2020

CaseChat Overview and Summary

The applicant, BFC18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise visa. The core of the dispute revolved around whether the IAA had properly considered information presented by the applicant, which the applicant contended constituted "new information" that should have been taken into account.

The primary legal issues before Judge Kendall were whether the IAA erred in its assessment by failing to consider this alleged new information, and consequently, whether the IAA had failed to take into account a relevant consideration in its decision-making process. The applicant argued that these failures amounted to jurisdictional error.

Judge Kendall found that the information provided by the applicant was not "new information" in the sense that it did not introduce a new claim or a significant change in circumstances that would necessitate a reconsideration of the original decision. The IAA had considered the material before it, and its assessment of the information was within its powers. Therefore, the court concluded that no jurisdictional error had occurred.

The application for judicial review was dismissed.

Orders