DOE18 v Minister for Home Affairs - [2018] FCCA 3317

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOE18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3317

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority adopted an erroneously narrow meaning of ‘credible personal circumstances’ – whether the Authority failed to consider the risk posed to the applicant – whether the Authority’s reasons were inconsistent, illogical or irrational – whether the Authority failed to exercise its power under s 473DC of the Act – whether the Authority misunderstood or misapplied the statutory definition of “serious harm” – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476, 501K

Cases cited:

Plaintiff M174/2016 v Minister (2018) 353 ALR 600

Applicant:

DOE18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1900 of 2018

Judgment of:

Judge Street

Hearing date:

15 November 2018

Date of Last Submission:

15 November 2018

Delivered at:

Sydney

Delivered on:

15 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Stamford Law

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Grant leave to the applicant to rely upon the amended application filed 2 November 2018.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,700.00.

DATE OF ORDER: 15 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1900 of 2018

DOE18

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 12 June 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a habitual resident of Iran who had been born in Iraq, and was found to be a stateless Faili Kurd and Shia Muslim. The applicant arrived in Australia on 31 October 2012 as an unauthorised maritime arrival. The applicant made the application for a Safe Haven Enterprise visa on 4 November 2015.
The applicant claimed to fear harm on the basis of his race and nationality, being a stateless person who was born in Iraq and because of his Faili Kurd ethnicity. The applicant claimed he would be unable to work legally in Iran and if he returned to Iran as an undocumented, unregistered stateless refugee he would be unable to renew his white card. The applicant claimed if he returned to Iraq he feared being seriously harmed or killed by Sunni terrorists, particularly in northern Iraq. The applicant also claimed to fear harm as an asylum seeker who sought protection in a western country.
On 23 August 2017, the delegate found the applicant failed…

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.

Keep reading for free

Create a free CaseChat account to read DOE18 v Minister for Home Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3317
Decision Date: 15 November 2018

CaseChat Overview and Summary

The applicant, DOE18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to affirm the refusal of their application for a Safe Haven Enterprise visa. The dispute centred on whether the IAA had properly considered the applicant's circumstances and the risks they faced in their country of origin.

The court was required to determine several key legal issues. These included whether the IAA had adopted an impermissibly narrow interpretation of "credible personal circumstances," whether it had failed to adequately consider the risk of harm to the applicant, and whether its reasons for decision were inconsistent, illogical, or irrational. Furthermore, the court considered whether the IAA had failed to exercise its power under section 473DC of the Migration Act 1958 (Cth) and whether it had misunderstood or misapplied the statutory definition of "serious harm."

In its reasoning, the court found that the IAA had not made a jurisdictional error. The Authority's assessment of the applicant's personal circumstances and the risks they faced was found to be within the bounds of its statutory powers and did not exhibit the alleged inconsistencies, illogicality, or irrationality. The court concluded that the IAA had properly considered the relevant criteria and applied the correct legal principles in its decision-making process.

Consequently, the court dismissed the applicant's amended application.

Orders