EAB16 v Minister for Immigration - [2017] FCCA 843

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAB16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 843

Catchwords:
MIGRATION – Injunction – cancellation of visa whilst applicant overseas – applicant stranded in Dubai International Airport – whether power to make injunctive orders – effect of s.42(1) of Migration Act – whether Minister entitled to rely on validity of visa cancellation unless and until constitutional writs issued – balance of convenience.

Legislation:

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Migration Act 1958 (Cth), ss.42(1) and 474

Cases cited:

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Lansen and Others v Minister for Environment and Heritage and Another (2008) 174 FCR 14

Applicant:

EAB16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 125 of 2017

Judgment of:

Judge Heffernan

Hearing date:

6 April 2017

Date of Last Submission:

6 April 2017

Delivered at:

Adelaide

Delivered on:

6 April 2017 (ex tempore)

REPRESENTATION

Counsel for the Applicant:

Mr S McDonald

Solicitors for the Applicant:

Camatta Lempens Pty Ltd Lawyers

Counsel for the Respondents:

Mr P d'Assumpcao

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

An interlocutory injunction is granted until the final determination of this action, restraining the Minister, the Commonwealth and each of them, including whether by their officers, servants or agents or howsoever otherwise, from acting on the basis that the applicant’s class BB subclass 155 Resident Return visa was validly cancelled by the decision made on 15 March 2017, including in particular, but not limited to, representing via the electronic visa record system of the Department of Immigration and Border Protection that the applicant does not have a class BB subclass 155 Resident Return visa that is in effect.
Costs are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 125 of 2017

EAB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 6 April 2017, I made orders in this matter giving brief oral reasons. I indicated that I would add to those reasons at a later date. These are my reasons for judgment.
This is an Application in a Case seeking an interlocutory injunction seeking to restrain the Minister, the Commonwealth, their officers and all servants and agents, from acting on the basis that the decision made by the Departmental Officer ‘Warren’ on 15 March 2017, had the effect of validly cancelling the applicant’s Class BB subclass 155 resident return visa.
I will not repeat in full the chronology set out in the affidavit of Ms Emily Rutherford, dated 5 April 2017, although I have given consideration to it. The applicant was granted a protection visa in 2009. In May 2016, he was granted a Class BB Subclass 155 Resident Return Visa. In 2016 he travelled overseas to Pakistan. The simple fact of the matter is the applicant is presently stranded in the United Arab Emirates at the Dubai International Airport, his visa having been cancelled, unknown to him,…

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: [2017] FCCA 843
Decision Date: 6 April 2017 (ex tempore)

CaseChat Overview and Summary

The applicant, EAB16, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider relevant evidence or had applied the wrong legal test in relation to the applicant's fear of persecution.

Judge Heffernan found that the delegate had made a jurisdictional error by failing to adequately assess the applicant's claims regarding past persecution and the real chance of future persecution. The Court reasoned that the delegate's assessment was based on an incomplete and flawed understanding of the evidence presented, leading to an erroneous conclusion. The principles of administrative law, particularly concerning the duty to afford procedural fairness and the requirement for a decision-maker to properly consider all relevant evidence, were central to this finding.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders