Ebe18 v Minister for Immigration - [2020] FCCA 1554

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBE18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1554

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s decision was legally unreasonable – whether the Authority applied the relevant law – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5H, 36, 473CB, 473DC, 473GA, 473GB, 476

Applicant:

EBE18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 606 of 2020

Judgment of:

Judge Street

Hearing date:

11 June 2020

Date of Last Submission:

11 June 2020

Delivered at:

Sydney

Delivered on:

3 August 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the First Respondent:

Ms B Rayment via Microsoft Teams
Sparke Helmore

ORDERS

The amended application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 606 of 2020

EBE18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 pt 7AA of the Act made on 27 February 2020 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Jordan and his claims were assessed against that country. In April 2013, the applicant arrived in Australia as an unauthorised maritime arrival. In September 2017, the applicant applied for a Safe Haven Enterprise visa.
The applicant claimed, in summary, to fear harm by reason of being a stateless Palestinian who had been living in Syria and that he could not return to Syria because he would be arrested, detained, tortured and killed by the Syrian regime and also to fear harm by reason of being a Sunni.
On 19 January 2018, the Delegate found that the applicant did not meet the criteria for the grant of a Safe Haven Enterprise visa.
The Delegate’s reasons refer to having asked the applicant questions about his alleged life in Syria and having raised with the applicant information in relation to the transfer of funds to several people in Jordan and the use of the applicant’s alleged identity to send that money and identified that the applicant denied sending the money.
The Delegate found that due to the applicant’s overall lack of credibility and the unconvincing nature of his answers to the questions relating to his claimed time in Syria and the evidence relating to the money transfer, the applicant was not from Syria but a citizen of Jordan and that Jordan is his receiving country.
The Delegate’s reasons refer having put to the applicant that he sent large volumes of money to persons based in Jordan and that…

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 1554
Decision Date: 3 August 2020

CaseChat Overview and Summary

The applicant, Ebe18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise visa. The core of the dispute revolved around whether the IAA's decision was legally unreasonable and whether the Authority had correctly applied the relevant migration law.

The primary legal issues before the Court were whether the IAA had committed a jurisdictional error by making a decision that was legally unreasonable, and whether the Authority had failed to apply the correct legal principles in assessing the applicant's visa application. The applicant contended that the IAA's decision was so illogical or irrational that it could not stand.

Judge Street found that the IAA had not made a jurisdictional error. The Court reasoned that the IAA's decision, while perhaps not to the applicant's liking, was not so unreasonable as to be legally invalid. The Authority had considered the relevant factors and applied the applicable legal framework to the facts before it. Consequently, the amended application was dismissed.

Orders