CTY20 v Minister for Immigration - [2020] FCCA 1900

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTY20 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1900

Catchwords:
MIGRATION – visa application – review of claim – extension of time – serious or significant harm – ‘psychological re-experiencing’ – no reasonable prospects

MIGRATION – visa application – review of claim – abuse of process – new evidence

Legislation:

Migration Act 1958 (Cth), ss.5J(1)(a), 36(2), 473CB, 473DC(2), 473DD(b), 473FB(5), 477(1), 486D

Cases cited:

AGX16 v Minister for Immigration and Anor [2016] FCCA 2445
AXT19 v Minister for Home Affairs [2020] FCAFC 32
BZAGD v Minister for Immigration and Another [2015] FCCA 3471
BZAGD v Minister for Immigration and Border Protection [2016] FCA 670
CVA15 v Minister for Immigration and Anor [2017] FCCA 132
DZY17 v Minister for Home Affairs and Anor [2018] FCCA 1987
DZY17 v Minister for Home Affairs and Anor [2018] FCAFC 196
Joshi v Minister for Immigration and Anor [2016] FCCA 2168
MZAER v Minister for Immigration and Anor [2016] FCCA 782
MZAER v Minister for Immigration and Border Protection [2016] FCA 1426

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1695
SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170
SZFOZ v Minister for Immigration and Anor [2007] FMCA 465
Walton and Rogers v The Queen (1994) 181 CLR 251
Williams v Spautz (1992) 174 CLR 509

First Applicant:

CTY20

Second Applicant:

CUB20

Third Applicant:

CUC20

Fourth Applicant:

CUD20

Fifth Applicant:

CTZ20

Sixth Applicant:

CUA20

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 330 of 2020

Judgment of:

Judge Jarrett

Hearing date:

9 April 2020

Date of Last Submission:

9 April 2020

Delivered at:

Brisbane

Delivered on:

15 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr Moxon

Solicitors for the Applicant:

Sydney West Legal and Migration

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed on 16 June, 2020 be dismissed.
The first and second applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG330 of 2020

CTY20

First Applicant

CUB20

Second Applicant

CUC20

Third Applicant

CUD20

Fourth Applicant

CTZ20

Fifth Applicant

CUA20

Sixth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicants seek an extension of time to apply for judicial review of a decision of the second respondent made on 20 April, 2018 which affirmed a decision of a delegate of the first respondent to refuse the grant of a Safe Haven Enterprise visa. Their application was originally filed on 9 October, 2019. On 26 March, 2020 they filed an amended application whereby they seek to abandon all of the grounds in the application as originally filed and replace it with a single different ground of review.
The applicants previously brought proceedings seeking relief of…

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 1900
Decision Date: 15 July 2020

CaseChat Overview and Summary

The applicant, CTY20, sought judicial review of a decision by the Minister for Immigration to refuse their visa application. The core of the dispute concerned the assessment of CTY20's claims of serious or significant harm, particularly in relation to allegations of 'psychological re-experiencing', and whether the Minister's decision had reasonable prospects of success. The matter was heard before Judge Jarrett in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the Minister's assessment of CTY20's claims of serious or significant harm was affected by an error of law, and whether the decision to refuse the visa application was affected by such an error. A secondary issue arose concerning whether the applicant's conduct constituted an abuse of process, particularly in light of new evidence presented by CTY20.

Judge Jarrett found that the Minister's assessment of the applicant's claims, including the specific allegations of 'psychological re-experiencing', was conducted in accordance with the relevant legal framework. The Court determined that there were no reasonable prospects of success for CTY20's application, as the evidence did not establish the necessary grounds for the visa to be granted. Furthermore, the Court concluded that the applicant's actions did not amount to an abuse of process, despite the introduction of new evidence. The Court ultimately dismissed the application for judicial review.

Orders