Ebv17 v Minister for Immigration - [2019] FCCA 1216

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBV17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1216

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – Authority accepting that the applicant faced a risk of harm in his home region but found that not all of Pakistan was unsafe and that the applicant could relocate – whether the Authority failed to consider an integer of a claim or erred in assessing the reasonableness of relocation or failed to comply with s.473DB of the Migration Act 1958 (Cth) considered – impact of PAM Guidelines on that issue considered – issue of a non disclosure certificate identified but not considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DF, 473DE, 473FA, 473GA, 473GB

Cases cited:

Applicant WAEE v Minister for Immigration [2003] FCAFC 184

BBO16vMinister for Immigration [2017] FCA 212

BVD17 v Minister for immigration [2019] HCA 34

CRI028 v Republic of Nauru (2018) 356 ALR 50

DFE16 v Minister for Immigration & Anor [2017] FCCA 308

DGZ16 v Minister for Immigration [2018] FCAFC 12

Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3

Minister for Immigration v SZQRB (2013) 210 FCR 505

Minister for Immigration v SZSCA (2014) 254 CLR 317

MZYXS v Minister for Immigration [2013] FCA 614

MZZFM v Minister for Immigration (2014) 144 ALD 316

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63

SZBGC v Minister for Immigration [2005] FCA 1168

SZMPF v Minister for Immigration [2009] FCA 908

SZVRA v Minister for Immigration [2017] FCA 121

Applicant:

EBV17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2821 of 2017

Judgment of:

Judge Driver

Hearing date:

8 May 2019

Date of Last Submission:

11 June 2019

Delivered at:

Sydney

Delivered on:

5 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr S Tully

Solicitors for the Applicant:

Ryburn Solicitors

Solicitors for the Respondents:

Ms S Given of HWL Ebsworth

ORDERS

The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 12 September 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2821 of 2017

EBV17

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 1 August 2017. 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 parties.
The applicant, a male citizen of Pakistan, arrived in Australia…

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: [2019] FCCA 1216
Decision Date: 5 December 2019

CaseChat Overview and Summary

The applicant, Ebv17, 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 Pakistan. The IAA had accepted that the applicant faced a risk of harm in their home region but concluded that not all of Pakistan was unsafe and that the applicant could relocate to a safer area within the country.

The central legal issues before Judge Driver were whether the IAA had failed to consider an integral part of the applicant's claim, erred in assessing the reasonableness of relocation, or failed to comply with section 473DB of the *Migration Act 1958* (Cth). The impact of the Protection Assessment Manual (PAM) Guidelines on these issues was also to be considered. The court noted that an issue concerning a non-disclosure certificate had been identified but was not considered by the IAA.

Judge Driver found no jurisdictional error on the part of the IAA. The court reasoned that the IAA had adequately considered the applicant's claim and the reasonableness of relocation, applying relevant legal principles and the PAM Guidelines. The failure to consider the non-disclosure certificate, while noted, did not amount to a jurisdictional error in the context of the overall decision-making process.

Orders