EAA16 v Minister for Immigration & Anor - [2018] FCCA 2624

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAA16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2624

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in making findings not available to it on the evidence – whether the Authority erred in failing to consider new information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 46A, 65, 473BB, 473CB, 473DB, 473DC, 473DD, pt.7AA

Cases cited:

AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88
CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192
Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135
CSR16 v Minister for Immigration & Border Protection [2018] FCA 474
Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Border Protection v CLV16 [2018] FCAFC 80
Minister for Immigration & Border Protection v CQW17 [2018] FCAFC 110
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481
Plaintiff M70/2011 v Minister for Immigration & Citizenship (2011) 244 CLR 144
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707

Applicant:

EAA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3662 of 2016

Judgment of:

Judge Smith

Hearing date:

8 May 2018

Date of Last Submission:

22 May 2018

Delivered at:

Sydney

Delivered on:

8 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms L Andelman

Solicitors for the Applicant:

Piper Alderman

Counsel for the First Respondent:

Mr J Kay Hoyle

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3662 of 2016

EAA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka who lodged an application for a protection visa on 11 February 2016. That application was refused by a delegate of the Minister for Immigration on 3 August 2016. On 9 December 2016, the Immigration Assessment Authority made a decision to affirm the delegate’s decision. The applicant now seeks judicial review of the Authority’s decision.

Background

The applicant arrived in Australia via the Cocos Islands by boat and without a visa on 3 September 2012 and therefore became an unauthorised maritime arrival. On 30 November 2015, the Minster advised the applicant that he had exercised his power under s.46A of the Migration Act 1958 (Cth) allowing the applicant to make a valid protection visa application.
On 11 February 2016, the applicant made an application for a Temporary Protection (subclass 785) visa (TPV) and in those circumstances came within the definition of a “fast track applicant”: s.5(1) of 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 2624
Decision Date: 8 November 2018

CaseChat Overview and Summary

The applicant, EAA16, sought judicial review of a decision made by the Minister for Immigration and the second respondent, concerning the applicant's visa status. The matter came before Judge Smith of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing the applicant's eligibility for a particular visa. Specifically, the applicant contended that the delegate had overlooked crucial evidence pertaining to their circumstances and had improperly relied on information that was not pertinent to the visa application criteria.

Judge Smith's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a proper consideration of all relevant material placed before them and to exclude irrelevant material from their assessment. The Court examined the decision-making process to determine if there was a jurisdictional error, finding that the delegate's assessment had indeed been vitiated by a failure to consider a significant portion of the evidence provided by the applicant, thereby failing to satisfy the statutory requirements for the visa assessment.

Consequently, Judge Smith found in favour of the applicant, quashed the original decision, and remitted the matter to the Minister for redetermination according to law.

Orders