BIG17 v Minister for Immigration - [2020] FCCA 802

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIG17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 802

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to take into account and/or properly consider the applicant’s submission – whether the Authority failed to take into account a mandatory relevant consideration – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476

Applicant:

BIG17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 176 of 2017

Judgment of:

Judge Street

Hearing date:

7 April 2020

Date of Last Submission:

7 April 2020

Delivered at:

Sydney

Delivered on:

7 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr F Robertson

Solicitors for the Applicant:

AUM Legal

Solicitors for the Respondents:

Mr P Macliver Australian Government Solicitor

ORDERS

The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
The hearing will be recorded by Microsoft on Microsoft Teams and by Auscript on the Judge’s microphone and no other recording of the hearing is to be made.
A link to the Microsoft Teams recording will be uploaded to the “Transcript” folder on the Electronic Court File and may be made available to the parties upon request.
Leave is granted to the applicant to rely on the amended application filed on 4 March 2020.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,347.00.

DATE OF ORDER: 7 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 176 of 2017

BIG17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL 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 pt 7AA of the Act, made on 23 February 2017, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection 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 13 March 2013.
The applicant was born in a village in a particular district in the Ghazni Province in Afghanistan, and he is married and has three children, and his family in that regard reside in Pakistan.
The applicant claimed that the Taliban wanted him to stop working as a taxi driver, and that there was an incident in which he found his taxi to be on fire.
The applicant claimed to fear harm from the Taliban, and by reason of being a Shia Muslim, and…

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 802
Decision Date: 7 April 2020

CaseChat Overview and Summary

BIG17 (the applicant) sought judicial review of a decision by the Immigration Assessment Authority (the Authority) to refuse their application for a Safe Haven Enterprise visa. The applicant contended that the Authority had failed to take into account and/or properly consider their submissions, and had also failed to consider a mandatory relevant consideration.

The central legal issues before the Court were whether the Authority had committed jurisdictional error by failing to consider the applicant's submissions or a mandatory relevant consideration. The applicant argued that these failures amounted to a breach of the requirements of the *Migration Act 1958* (Cth) and the principles of administrative law.

Judge Street found that the Authority had not made a jurisdictional error. The Court reasoned that the Authority's decision record demonstrated that the applicant's submissions had been considered, and that no mandatory relevant consideration had been overlooked. The Court applied the principles of administrative law concerning the proper consideration of submissions and mandatory considerations in the context of visa applications.

The amended application was dismissed.

Orders