Legal Research
Cases
BOS17 v Minister for Immigration

BOS17 v Minister for Immigration

Link copied

Case Copied 12 February 2019 34 min read

Contents

On this page

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOS17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 285

Catchwords:
MIGRATION – Safe haven enterprise visa (class XE) (subclass 790) – Immigration Assessment Authority – whether new information – credible personal information – letter predating delegate’s decision not taking the form of new information – applicant’s new claims not clearly articulated – allegedly obvious enquiry about a critical fact, the existence of which was easily ascertained – SZIAI distinguished – no merit – application dismissed.

Legislation:

Migration Act 1958, pt.7AA, ss.473DD, 473DE

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
BCF15 v Minister for Immigration & Anor (2016) 314 FLR 291
BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 22
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088

Duff v Freijah (1982) 62 FLR 280

EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180

Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244
Lucic v Nolan [1982] FCA 217

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377

Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106
Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713
Minister for Immigration and Citizenship v Li and Anor (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481
R v Kelly (Edward) [2000] 1 QB 198

SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137
Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287

Applicant:

BOS17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 736 of 2017

Judgment of:

His Honour Judge J D Wilson QC

Hearing date:

27 November 2018

Date of Last Submission:

11 December 2018

Delivered at:

Melbourne

Delivered on:

12 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr A Krohn

Solicitors for the Applicant:

Mano Associates

Counsel for the First Respondent:

Mr T Goodwin

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

No Appearance

Solicitors for the Second…

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.

Keep reading for free

Create a free CaseChat account to read BOS17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 285
Decision Date: 12 February 2019

CaseChat Overview and Summary

The applicant, BOS17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a Safe Haven Enterprise Visa (subclass 790). The delegate of the Minister for Immigration had previously refused the visa application.

The central legal issue before the Federal Circuit Court was whether the IAA had erred in its assessment of the applicant's claims, specifically concerning whether certain information constituted "new information" that the IAA was required to consider. The court also had to determine if the applicant's claims contained "credible personal information" and whether the IAA had properly applied the principles established in *SZIAI*.

His Honour Judge J D Wilson QC found that a letter submitted by the applicant, which predated the delegate's decision, did not constitute "new information" in the relevant sense. Furthermore, the court determined that the applicant's new claims were not clearly articulated and that an allegedly obvious enquiry about a critical fact, the existence of which was easily ascertainable, did not warrant further consideration. The court distinguished the present case from *SZIAI*, concluding that the applicant's grounds of review lacked merit.

The application was dismissed.

Orders