CVP17 v Minister for Immigration - [2020] FCCA 2744

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVP17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2744

Catchwords:
MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – applicant Vietnamese Catholic – application for protection visa – fast track applicant – jurisdictional error – inconsistencies in evidence – breach of procedural fairness – applicant not invited to comment or give further evidence about data breach identified by IAA – legal unreasonableness – conclusions reached by IAA said to be illogical or unreasonable – matters to be considered – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473CC, 473DA, 473DB, 473DC,

473DD, 473DE

Cases cited:

BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365

BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179

BMV16 v Minister for Home Affairs [2018] FCAFC 90

BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958

CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641

DBE16 v Minister for Immigration & Border Protection [2017] FCA 942

DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12

Minister for Home Affairs v AYJ17 [2019] FCA 591

Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210

Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437

Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018]

HCA 16

Re Minister for Immigration & Citizenship: ex parte Lam (2003) 195 ALR 502

Applicant:

CVP17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 253 of 2017

Judgment of:

Judge Brown

Hearing date:

31 March 2020

Date of Last Submission:

31 March 2020

Delivered at:

Adelaide

Delivered on:

6 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr Jacobi

Solicitors for the Applicant:

Camatta Lempens Lawyers

Counsel for the Respondents:

Ms Milutinovic

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed 27 June 2017, as amended 3 September 2019, is dismissed.
The Applicant pay the First Respondent’s costs in the amount of seven thousand four hundred and sixty seven dollars ($7,467.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 253 of 2017

CVP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Immigration Assessment Authority[1] made on 9 June 2017 not to grant the applicant a protection visa, pursuant to the provisions of the Migration Act 1958.[2]
[1] Hereinafter referred to as the IAA
[2] Hereinafter referred to as “the Act”
The applicant is a citizen of Vietnam, who arrived at Christmas Island, by boat, on 8 May 2013. This resulted in him being classified as an unauthorised…

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 2744
Decision Date: 6 October 2020

CaseChat Overview and Summary

The applicant, CVP17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a protection visa. CVP17, who is Vietnamese and Catholic, was classified as a "fast track" applicant. The core of the dispute revolved around allegations of jurisdictional error, specifically concerning inconsistencies in the evidence before the IAA and a claimed breach of procedural fairness.

The court was required to determine whether the IAA had committed jurisdictional error by failing to afford the applicant procedural fairness. This involved considering whether the applicant was entitled to be invited to comment on, or provide further evidence regarding, a data breach that the IAA identified. Furthermore, the court had to assess whether the IAA's conclusions were legally unreasonable, meaning they were illogical or lacked a rational basis.

In dismissing the application, the court found that the IAA had not committed jurisdictional error. The court reasoned that the applicant had been afforded procedural fairness. The IAA's identification of a data breach did not necessitate a further invitation to the applicant to comment or provide additional evidence, as the breach did not fundamentally alter the basis of the applicant's claim or introduce new adverse information that required a response. The court also concluded that the IAA's findings were not legally unreasonable, as they were open to the IAA on the evidence before it.

Orders