CSF17 v Minister for Home Affairs - [2018] FCCA 2611

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSF17 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2611

Catchwords:

MIGRATION – Judicial review of a decision of the Immigration Assessment Authority – protection visa refused – where Authority did not consider new information submitted by the Applicant – whether the Authority adopted an unduly narrow construction of s.473DD of the Migration Act 1958 (Cth) – whether Authority decision was legally unreasonable – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.473CB, 473DC, 473DD, 476

Cases cited:

AQU17 v the Minister for Immigration and Border Protection [2018] FCAFC 111
BRA16 v Minister for Immigration and Border Protection [2018] FCA 127
BVZ16 v Minister for Immigration and Border Protection [2018] FCA 127

Applicant:

CSF17

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 691 of 2018

Judgment of:

Judge Baird

Hearing date:

6 September 2018

Date of Last Submission:

6 September 2018

Delivered at:

Sydney

Delivered on:

6 September 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Ms S Given, solicitor, HWL Ebsworth

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 691 of 2018

CSF17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore, Revised from Transcript)

Introduction

Before me today is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority dated 23 February 2018. The Authority affirmed a decision dated 11 January 2017 of a Delegate of the First Respondent, then the Minister for Immigration and Border Protection (now the Minister for Home Affairs), not to grant the Applicant a Safe Haven Enterprise (Class XE 790) Visa (SHEV).

Background

The Applicant is a citizen of Sri Lankan of Tamil ethnicity. He was born in 1971. He arrived in Australia by boat, in October 2012. On 14 March 2016, according to the “received” stamp on the SHEV in evidence, the Applicant applied for a SHEV.
On 25 July 2016, the Applicant attended an interview with the Delegate to discuss his protection claims. On 11 January 2017, the Delegate refused to grant the Applicant a SHEV. The Delegate’s decision, as a “fast track reviewable decision”, was referred to the Authority on 16 January 2017 for review under Part 7AA of the Act.
In an acknowledgement of referral letter dated 16 January 2017, the Authority provided the Applicant with a copy of a Practice Direction issued by the President of the Authority on 14 October 2016. That Practice Direction referred, inter alia, to the limited circumstances in which the Authority could consider new information that was not before the Department as set out in s.473DD of the Act. The letter continued to state that if the Applicant wants to provide new information, he must also provide an explanation as to why the information falls…

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: [2018] FCCA 2611
Decision Date: 6 September 2018

CaseChat Overview and Summary

CSF17 (the applicant) sought judicial review of a decision made by the Immigration Assessment Authority (the Authority) to refuse their application for a protection visa. The applicant contended that the Authority failed to consider new information they had submitted and that the Authority had adopted an unduly narrow construction of section 473DD of the *Migration Act 1958* (Cth). The applicant also argued that the Authority's decision was legally unreasonable.

The central legal issues before the Court were whether the Authority had engaged in jurisdictional error by failing to consider the new information provided by the applicant, and whether the Authority's interpretation and application of section 473DD of the *Migration Act* was legally unreasonable.

Judge Baird found that the Authority had not adopted an unduly narrow construction of section 473DD. The Court reasoned that the Authority's assessment process, as outlined in the legislation, did not mandate the consideration of all new information submitted by an applicant in every circumstance. The Court concluded that the Authority's decision was not legally unreasonable and that no jurisdictional error had been established. Consequently, the application for judicial review was dismissed.

Orders