EAC18 v Minister for Immigration - [2020] FCCA 1019

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAC18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1019

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – numerous errors alleged – whether the Authority’s review was disabled by the failure of the Secretary to provide it with a record of interview with the applicant which had been taken into account by the delegate considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.46A, 65, 473CB, 473DC, 473DD

Cases cited:

AUF18 v Minister for Immigration [2019] FCAFC 222

BVI18 v Minister for Immigration & Anor [2020] FCCA 9

BVZ16 v Minister for Immigration [2017] FCA 958

EVS17 v Minister for Immigration [2019] FCAFC 20

Hossain v Minister for Immigration [2018] HCA 34

Minister for Immigration v CPA16 [2019] FCAFC 40

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Minister for Immigration v Rajalingham (1999) 93 FCR 220

Minister for Immigration v SZMTA [2019] HCA 3

NAHI v Minister for Immigration [2004] FCAFC 10

Applicant:

EAC18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2154 of 2018

Judgment of:

Judge Driver

Hearing date:

5 February 2020

Date of Last Submission:

8 April 2020

Delivered at:

Sydney

Delivered on:

1 May 2020

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Mills Oakley

ORDERS

A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 18 July 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2154 of 2018

EAC18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 July 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister.
The applicant is a citizen of Sri Lanka. As noted above, he seeks judicial review of the decision of the Authority,[1] in which it affirmed a decision of the delegate dated 19 September 2017 (delegate’s decision) refusing the grant of a protection visa pursuant to s.65 of the Migration Act 1958 (Cth) (Migration Act).[2]
[1] Court Book (CB) 197-216
[2] CB 135-150
The applicant arrived in Australia on 18 November 2012 as an unauthorised maritime arrival.[3] He made an application for a Safe Haven Enterprise Visa (SHEV) dated 12 February 2016[4] although the application was not received until 1 March…

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 1019
Decision Date: 1 May 2020

CaseChat Overview and Summary

The applicant, EAC18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant claimed to fear harm in Sri Lanka, but the delegate who initially considered the application disbelieved parts of their account and found other claimed fears to be not well-founded. The applicant alleged numerous errors in the IAA's review process.

The central legal issue before Judge Driver was whether the IAA's review of the delegate's decision was vitiated by jurisdictional error, specifically arising from the failure of the Secretary to provide the IAA with a record of an interview with the applicant. This interview had been taken into account by the delegate in reaching their original decision.

Judge Driver found that the failure to provide the record of interview to the IAA constituted a jurisdictional error. The court reasoned that the IAA's statutory duty to conduct a review required it to have access to all relevant material considered by the delegate. Without the interview record, the IAA could not properly assess the delegate's findings or conduct a comprehensive review, thereby disabling its review function and rendering its decision invalid. The court concluded that jurisdictional error had been established.

Orders