CRT16 v Minister for Immigration - [2020] FCCA 2132

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRT16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2132

Catchwords:
MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority asked itself the wrong question – whether jurisdictional error where invalid s.473GB notification.

Legislation:

Migration Act 1958 (Cth), Part 7AA, s.473GB

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
AYF16v Minister for Immigration and Border Protection (2018) 264 FCR 654; [2018] FCAFC 129
BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 33
BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35; [2018] FCAFC 114
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Minister for Immigration and Border Projection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081

Applicant:

CRT16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2557 of 2016

Judgment of:

Judge Barnes

Hearing date:

31 May 2019

Date of Last Submission:

20 December 2019

Delivered at:

Sydney

Delivered on:

4 August 2020

REPRESENTATION

Counsel for the Applicant:

Mr Chia

Counsel for the Respondents:

Mr Reilly

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2557 of 2016

CRT16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Immigration Assessment Authority (the Authority) dated 25 August 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Iran, arrived in Australia in November 2012. He applied for a temporary protection visa in June 2015.
In his visa application the Applicant described his religion as: “Atheist”. He claimed that the Iranian government did not allow citizens to be atheists. In a written statement in support of his application he claimed that at high school he had spoken out about his disagreement with Islam and was asked to agree not to “talk negative or bad about the religion again”. He claimed he was threatened with expulsion for this misbehaviour.
The Applicant also claimed that while he was at university the “fanatic Islamic people” knew about his ideas, treated him badly, argued with him and made trouble for him. He claimed that when he left university he tried to find a job in the government sector, but that he would be asked about religion and prayer in…

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 2132
Decision Date: 4 August 2020

CaseChat Overview and Summary

CRT16 (the applicant) sought judicial review of a decision made by the Immigration Assessment Authority (the Authority) concerning their application for review of a decision made by the Minister for Immigration (the Minister). The core of the dispute revolved around alleged jurisdictional error by the Authority.

The primary legal issues before the Court were whether the Authority asked itself the wrong question in its assessment process and whether a jurisdictional error had occurred due to an invalid notification issued under section 473GB of the *Migration Act 1958* (Cth).

Judge Barnes found that the Authority had indeed asked itself the wrong question, which constituted a jurisdictional error. This error arose from the invalidity of the section 473GB notification. The Court quashed the decision of the Immigration Assessment Authority.

Orders