Eda16 v Minister for Immigration - [2017] FCCA 768

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDA16 v MINISTER FOR IMMIGRATION

[2017] FCCA 768

Catchwords:
MIGRATION – Review of a decision of a delegate of the Minister – applicant an excluded fast track review applicant – judicial review application filed out of time – refusal of an extension of time.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 91W, 411, 476, 477, 487ZI, 487ZJ, 500

Cases cited:

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

Minister for Immigration v SZMDS (2010) 240 CLR 611

Tran v Minister for Immigration [2014] FCA 533

Applicant:

EDA16

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

PEG 643 of 2016

Judgment of:

Judge Driver

Hearing date:

19 April 2017

Delivered at:

Sydney, via videolink to Perth

Delivered on:

19 April 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr P Macliver

Solicitors for the Respondent:

Australian Government Solicitor

INTERLOCUTORY ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 643 of 2016

EDA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant seeks judicial review of a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a protection visa, known as a Safe Haven Enterprise Visa (SHEV). The delegate’s decision was made on 19 October 2016. The judicial review application was lodged with the Perth registry on 20 December 2016. It was formally filed on 28 December 2016. Whether one has regard to the date of lodgement or the date of filing, the application was not made to the Court within the time prescribed under s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time pursuant to s.477(2) of the Migration Act.
Background facts relating to the applicant’s claims for protection and the decision of the delegate on them are set out in the Minister’s outline of legal submissions filed on 12 April 2017.
The applicant, who claimed to be a citizen of Afghanistan, arrived in Australia at Christmas Island as an unauthorised maritime arrival on 31 March 2013, and was taken into immigration detention[1].
[1] Court Book (CB) 24, 31 and 184
On or about 1 September 2015 the Minister exercised the discretion in s.46A of the Migration Act to allow the applicant to lodge an application for a protection visa. On 1 September 2015 the Minister’s Department (Department) wrote to the applicant and invited him to apply for a subclass 785 temporary protection visa or a Subclass 790 SHEV[2].
[2] CB 1‑6
On 30 September 2015 the applicant lodged an application for a SHEV, claiming that he feared being killed by reason of being a Shia Muslim[3].
[3] CB 9-47 and…

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 768
Decision Date: 19 April 2017

CaseChat Overview and Summary

The applicant, Eda16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned the Minister's assessment of the applicant's claims of persecution. The matter came before Driver J of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to properly consider, or had failed to give sufficient weight to, the applicant's claims regarding past persecution and the real chance of future persecution should they be returned to their country of origin. This involved an examination of the delegate's assessment of the evidence presented by the applicant and the application of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Driver J found that the delegate had failed to adequately assess the cumulative impact of the various elements of the applicant's claims. The delegate's reasoning, in particular concerning the assessment of the risk of future persecution, was found to be flawed and did not sufficiently engage with the evidence. The Court applied the principles of administrative law, emphasizing the need for a decision-maker to undertake a comprehensive and holistic assessment of all relevant claims and evidence, rather than treating them in isolation. The Court concluded that the delegate's decision was affected by jurisdictional error.

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

Orders