Dez18 v Minister for Home Affairs - [2020] FCCA 2880

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEZ18 v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 2880

Catchwords:
MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that it was illogical and manifested a misapplication of ss.5H, 5J and 36(2B)(c) of the Migration Act 1958.

Legislation:

Migration Act 1958, ss.5, 5H, 5J, 36, 473CA, 474, 477

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
BBK15 v Minister for Immigration and Border Protection [2016] FCA 680

Applicant:

DEZ18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1725 of 2018

Judgment of:

Judge Cameron

Hearing date:

23 September 2019

Date of Last Submission:

23 September 2019

Delivered at:

Sydney

Delivered on:

23 October 2020

REPRESENTATION

Counsel for the Applicant:

Ms A.F. Garsia

Solicitors for the Applicant:

Playfair Legal Pty Ltd

Counsel for the First Respondent:

Mr G. Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT SYDNEY

SYG 1725 of 2018

DEZ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The applicant is a citizen of Afghanistan. He left Afghanistan illegally in 2008 and travelled to Karachi where he remained until September 2012. He departed Karachi by air and subsequently arrived in Indonesia. He then departed Indonesia and arrived by boat at Christmas Island on 24 December 2012 without a visa permitting him to enter and stay in Australia. As such he was an unauthorised maritime arrival who could not make a valid visa application. However, on 1 December 2015 the Minister lifted the bar preventing him from applying for a visa.
On 19 July 2016 the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Afghanistan;
a)from generalised violence;
b)because of a land dispute with members of his mother’s family;
c)as a perceived opponent of the Taliban;
d)as a male landowner and eldest male of a family;
e)as a returned asylum-seeker from the West; and
f)because of significant health concerns.
On 28 July 2017 a delegate of the first respondent (“Minister”) refused the applicant’s application. Because the applicant was an unauthorised maritime arrival:
a)who entered Australia on or after 13 August 2012, but before 1 January 2014, and had not been taken to a regional processing country;
b)in respect of whom the Minister had lifted the bar preventing him making a valid visa application; and
c)who had made a valid application for a protection visa,
he was a “fast track applicant”, as that term is defined by s.5(1)…

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 2880
Decision Date: 23 October 2020

CaseChat Overview and Summary

Dez18 (the applicant) sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant alleged that the IAA's decision was affected by jurisdictional error.

The central legal issues before the court were whether the IAA's decision was illogical and whether it manifested a misapplication of sections 5H, 5J, and 36(2B)(c) of the *Migration Act 1958* (Cth). These provisions relate to the assessment of claims for protection visas, including the assessment of past persecution and the consideration of whether a person would be at risk of harm if returned to their country of origin.

Judge Cameron found that the IAA's decision was affected by jurisdictional error. The court reasoned that the IAA's assessment of the applicant's claims contained internal contradictions and failed to adequately engage with the evidence presented. Specifically, the court determined that the IAA's reasoning was illogical in its treatment of the applicant's account of past persecution and its assessment of the risk of future harm, thereby constituting a misapplication of the relevant legislative provisions.

The court ordered that the IAA's decision be set aside.

Orders