BHH18 v Minister for Home Affairs - [2020] FCCA 337

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHH18 v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 337

Catchwords:
MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether IAA erred in finding information before it to be “new information” – whether information in footnotes is information “before the Minister” – no jurisdictional error – application dismissed.

Legislation:

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

Prevention of Terrorism Act 1978 (SL)
United Nations Act 1968 (SL)

Cases cited:

BVD17 v Minister for Immigration & Border Protection & Anor [2019] HCA 34

CVV16 v Minister for Home Affairs [2019] FCA 1890
DPH17 v Minister for Immigration & Anor [2019] FCCA 2258
DTK17 v Minister for Immigration & Border Protection [2018] FCAFC 170
Selth v Australasian Barrister Chambers Pty Limited(No.2) [2016] FCA 46

Applicant:

BHH18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 148 of 2018

Judgment of:

Judge Kendall

Hearing date:

28 March 2019

Date of Last Submission:

28 March 2019

Delivered at:

Perth

Delivered on:

20 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr R Saul-Jahnke

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Mr P J Hannan

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 148 of 2018

BHH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 14 February 2018.
The IAA’s decision affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise Visa (the “visa”).
The applicant filed an amended application in this Court with a new ground of review on 31 January 2019. That sole ground of review, discussed below, is the subject of this judgment.
This proceeding 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 has fallen into jurisdictional error.
The Court had before it a Court Book (“CB”) spanning 397 pages, an affidavit of Shaun Wyn-Jones affirmed 30 January 2019, written submissions from the applicant dated 30 January 2019, written submissions from the Minister dated 21 December 2018 and further written submissions from the Minister dated 13 February 2019.
This matter was heard on 28 March 2019. The applicant was represented by Mr Saul-Jahnke. The Minister was represented by Mr Hannan.
On 9 May 2019, the Court made orders in Chambers adjourning the matter pending the High Court decision in BVD17 v Minister for Immigration & Border Protection & Anor [2019] HCA 34 (“BVD17”). The parties were provided an opportunity to file any written submissions addressing the issues that arose in BVD17 in relation to…

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 337
Decision Date: 20 February 2020

CaseChat Overview and Summary

The applicant, BHH18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise Visa. The Minister for Home Affairs was the respondent. The core of the dispute concerned whether the IAA had erred in its assessment of information provided to it.

The primary legal issues before the court were whether the IAA had made a jurisdictional error by incorrectly characterising certain information as "new information" when assessing the visa application, and whether information contained within footnotes of a document constituted information that was "before the Minister" for the purposes of the relevant migration legislation.

Justice Kendall found that the IAA's determination that the information before it was "new information" was a finding of fact that did not involve jurisdictional error. The court reasoned that the IAA was entitled to assess the information presented to it and determine its characterisation within the statutory framework. Furthermore, the court held that information contained within footnotes of a document, in the context of the material before the Minister, did not necessarily elevate it to the status of information "before the Minister" in a way that would vitiate the IAA's decision.

The application for judicial review was dismissed.

Orders