BHD18 v Minister for Immigration - [2019] FCCA 3354

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHD18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3354

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – Further Amended Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(1), 36(2A)

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109

Applicant:

BHD18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 146 of 2018

Judgment of:

Judge Kemp

Hearing date:

16 October 2019

Date of Last Submission:

16 October 2019

Delivered at:

Perth

Delivered on:

22 November 2019

REPRESENTATION

Solicitors for the Applicant:

AUM Legal

Solicitors for the Respondent:

Sparke Helmore

THE COURT ORDERS THAT

Leave be granted to the First Respondent to vary its title to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Leave be granted to the Applicant to rely on the Further Amended Application filed 16 October 2019.
The Further Amended Application filed 16 October 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceedings assessed in the sum of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 146 of 2018

BHD18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By way of background, the Applicant is a citizen of Sri Lanka. On 5 May 2013, the Applicant arrived on Cocos Island as an unauthorised maritime arrival. On 20 August 2013, the Applicant was interviewed.
On 19 July 2016, the Applicant was advised by the First Respondent that the bar pursuant to s.46A of the Migration Act 1958 (Cth) (“the Act”) had been lifted and he was invited to apply for a Temporary Protection (Subclass 785) visa or Safe Have Enterprise (Subclass 790) visa (“SHEV”).
On 5 April 2017, the Applicant applied for a SHEV.
The Applicant’s claims were, substantially, as set out in his statutory declaration made…

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 3354
Decision Date: 22 November 2019

CaseChat Overview and Summary

The applicant, BHD18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a protection visa. The Minister for Immigration was the respondent. The core of the dispute revolved around whether the IAA's decision was affected by jurisdictional error.

The primary legal issue before the Court was to determine whether the IAA had made a jurisdictional error in its assessment of BHD18's protection visa application. This required the Court to examine the IAA's decision-making process to ascertain if it had acted outside its legal authority or failed to observe the essential requirements of the law.

Judge Kemp found that no jurisdictional error had been established in the IAA's decision. The Court concluded that the IAA had properly considered the relevant evidence and applied the correct legal principles in reaching its determination. Consequently, the Further Amended Application filed by BHD18 was dismissed.

Orders