Dax18 v Minister for Home Affairs - [2018] FCCA 3230

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAX18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3230

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s findings of reasonableness of relocation where legally unreasonable – whether the Authority failed to consider the practicability of the applicant’s relocation – whether the Authority failed to consider integers of the applicant’s claims – whether it was legally unreasonable for the Authority not to exercise its powers under s 473DC of the Act – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 476

Applicant:

DAX18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1631 of 2018

Judgment of:

Judge Street

Hearing date:

8 November 2018

Date of Last Submission:

8 November 2018

Delivered at:

Sydney

Delivered on:

8 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr I Chatterjee

Solicitors for the Applicant:

D'Ambra Murphy Lawyers

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Grant leave to the applicant to rely upon the amended application dated 8 November 2018 initialled and dated by the Court and the Court dispenses with the filing of an electronic copy of the same.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 8 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1631 of 2018

DAX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 11 May 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 6 December 2012. The applicant was found to be a Shia Hazara from the Jaghori district in the province of Ghazni. The applicant claimed to fear harm arising from the murder of one of his brothers, and fears that the families of those arrested for the murder will take revenge on him. The applicant also claimed to fear harm as a Shia Hazara, both generally and at the hands of the Taliban. The applicant fears harm as a returned asylum seeker who spent time in the West and who has sought education; who is going to be targeted by criminals for ransom and from generalised violence.
On 17 November 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.
On 23 November 2017, the Authority wrote to the applicant explaining…

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 3230
Decision Date: 8 November 2018

CaseChat Overview and Summary

Dax18 (the applicant) sought judicial review of a decision made by the Immigration Assessment Authority (the Authority) concerning their application for a Safe Haven Enterprise visa. The core of the dispute revolved around whether the Authority's findings regarding the reasonableness and practicability of the applicant's relocation were legally unreasonable, and whether the Authority had adequately considered all aspects of the applicant's claims.

The court was required to determine whether the Authority had committed jurisdictional error by failing to consider the practicability of the applicant's relocation, by not considering all integers of the applicant's claims, and by unreasonably failing to exercise its powers under section 473DC of the Migration Act 1958 (Cth).

Justice Street found that the Authority's decision did not contain jurisdictional error. The court reasoned that the Authority had adequately considered the relevant factors in assessing the reasonableness of relocation, and that its findings were open to it on the evidence before it. The Authority was not required to exercise its powers under section 473DC in the circumstances.

Consequently, the amended application for judicial review was dismissed.

Orders