CYD17 v Minister for Home Affairs - [2019] FCCA 74

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYD17 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 74

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.198(6); 473DB(1); 473DC

Cases cited:

CRY16 v Minster for Immigration and Border Protection [2017] FCCA 1549

DZU16 v Minister for Immigration and Border Protection [2017] FCCA 581

Applicant:

CYD17

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 419 of 2018

Judgment of:

Judge Vasta

Hearing date:

14 January 2019

Date of Last Submission:

14 January 2019

Delivered at:

Brisbane

Delivered on:

14 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr L.J. Karp

Solicitors for the Applicant:

Fisher Dore

Counsel for the Respondent:

Mr A.G. Psaltis

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Applications filed 1 May 2018 and 10 December 2018 are dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 419 of 2018

CYD17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

The Applicant, CYD17, was deemed by the department to have been born in 1993. He is a citizen of Afghanistan. He entered Australia on 14 December 2012. On 26 May 2016, he was allowed to apply for a safe haven enterprise visa. He was interviewed by the delegate. The delegate refused the application on 25 November 2016.
Because that decision was a fast-tracked decision, the matter was referred to the Immigration Assessment Authority (“the IAA”). The IAA considered the matter and ended up affirming the decision of the delegate on 15 June 2017.
On 3 July 2017, the Applicant sought judicial review of the IAA’s decision. On 31 January 2018, His Honour Judge Jarrett, of this Court, quashed the IAA’s decision and referred the matter back to the authority for reconsideration. It would seem that the reason that His Honour did so was that he found that the IAA failed to consider a claim that the Applicant had made.
On 29 March 2018, the IAA, differently constituted, considered the claim again and again decided to affirm the delegate’s decision. The Applicant, on 1 May 2018, applied to this Court for a review of that decision. On 10 December 2018, the Applicant filed an amended originating application, which I have accepted and upon which this proceeding has been heard.
The Applicant’s claims, in short, are that he is a Shia Hazara, and he was born in the Uruzgan Province. When he was aged between one and two, his family home was the subject of a bomb that was set by the Taliban. He suffered injuries, most notably scars to his face and a disfigured right hand with some fingers missing.
When he was aged three or four, his father was decapitated by the Taliban. The…

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: [2019] FCCA 74
Decision Date: 14 January 2019

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Judge Vasta, considered the application of CYD17 for judicial review of a decision made by the Minister for Home Affairs. CYD17 sought to challenge the lawfulness of the Minister's decision to refuse to grant a visa. The core of the dispute concerned the Minister's assessment of CYD17's character and the subsequent refusal based on that assessment.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing CYD17's character, thereby vitiating the decision-making process. This involved an examination of the scope of the Minister's obligations under the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations.

Judge Vasta reasoned that the Minister's delegate had made a jurisdictional error by failing to properly consider the evidence presented regarding CYD17's rehabilitation and the positive aspects of their character. The delegate had placed undue weight on past offending without adequately balancing it against the mitigating factors and evidence of genuine change. The Court applied the principles of administrative law, emphasizing that decision-makers must undertake a balanced and fair assessment of all relevant material before them. The Court found that the delegate's approach was not open to them under the law.

Consequently, the Court ordered that the decision of the Minister for Home Affairs to refuse the visa application be set aside. The matter was remitted to the Minister for redetermination according to law.

Orders