DPT17 v Minister for Immigration - [2018] FCCA 3695

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPT17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3695

Catchwords:
MIGRATION – Safe haven enterprise (subclass 790) visa – Immigration Assessment Authority – authority did not accept certain claims by applicant that had been accepted by the minister’s delegate – procedural fairness – legal unreasonableness – context critical – CRW16 considered – authority’s reliance on applicant’s entry interview – audio and transcript of interview were before the minister’s delegate – authority considered all claims made by the applicant – application dismissed.

Legislation:

Migration Act 1958, pt.7AA, ss 473CB, 473DA, 473DC, 473DD, 473DE, 473FB

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
BCF15 v Minister for Immigration and Border Protection (2016) 314 FLR 291

CGL17 v Minister for Immigration and Border Protection [2018] FCA 1747

CRW16 v Minister for Immigration and Border Protection [2018] FCA 710

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

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222

Htun v Minister for Immigration and Border Protection (2001) 233 FCR 136

Minister for Immigration and Border Protection v CRY16 (2018) 253 FCR 475
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481

Applicant:

DPT17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 429 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

19 September and 25 October 2018

Date of Last Submission:

25 October 2018

Delivered at:

Melbourne

Delivered on:

14 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr M Guo

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Mr J Maloney

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

The application filed 10 August 2017 as amended on 6 September 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 429 of 2017

DPT17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This case concerned a decision by the Immigration Assessment Authority (“IAA”) made on 21 July 2017 pursuant to which the IAA affirmed a decision of the minister’s delegate not to grant the applicant a safe haven enterprise (subclass 790) visa. Relying on three grounds of his amended application for judicial review, the applicant contended that –
a)the IAA’s failure to consider whether to exercise its discretion to seek further information under s 473DC of the Migration Act (“Act”) was legally unreasonable;
b)the IAA examined the applicant’s entry interview without considering whether exceptional circumstances existed justifying its consideration and without the IAA first complying with s 473DE of the Act; and
c)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: [2018] FCCA 3695
Decision Date: 14 December 2018

CaseChat Overview and Summary

The applicant, DPT17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a Safe Haven Enterprise visa (subclass 790). The IAA had not accepted certain claims made by the applicant, which had previously been accepted by the Minister's delegate. The matter came before His Honour Judge Wilson in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the IAA had breached its duty to afford the applicant procedural fairness and whether the IAA's decision was legally unreasonable. Specifically, the Court was required to consider the IAA's reliance on the applicant's entry interview, the fact that the audio and transcript of this interview were available to the Minister's delegate, and whether the IAA had adequately considered all claims made by the applicant in light of these circumstances.

His Honour Judge Wilson considered the principles of procedural fairness and legal unreasonableness in the context of the IAA's review function. The Court noted that the IAA is not bound by the findings of the Minister's delegate but must still consider all claims made by the applicant. The IAA's reliance on the entry interview was found to be permissible, provided it was considered in conjunction with all other evidence and claims. The Court concluded that the IAA had considered all claims made by the applicant and that its decision was not legally unreasonable, nor did it breach procedural fairness.

Consequently, the application for judicial review was dismissed.

Orders