EDH17 v Minister for Immigration - [2018] FCCA 2965

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDH17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2965

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth): s.473DD, s.473DC

Cases cited:

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

CRY16 v Minister for Immigration [2017] FCCA 1549

Applicant:

EDH17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 919 of 2017

Judgment of:

Judge Vasta

Hearing date:

3 October 2018

Date of Last Submission:

3 October 2018

Delivered at:

Brisbane

Delivered on:

3 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Black

Solicitors for the Applicant:

Angus Francis Lawyers

Counsel for the Respondent:

Mr McGlade

Solicitors for the Respondent:

Minter Ellison

ORDERS

The Application filed on 15 September 2017 as amended on 10 January 2018 and 12 September 2018 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 919 of 2017

EDH17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

The Applicant, EDH17, is a national of Afghanistan who is 27 years of age. He arrived in Australia by boat as an unauthorised maritime arrival on 28 March 2013. He was invited to make an application for a safe haven enterprise visa (“SHEV”) which he did on 16 March 2016.
On 16 January 2017, the delegate of the Minister refused that application. The delegate’s decision was a fast track decision, and so, therefore, the matter was referred to the Immigration Assessment Authority (“the IAA”). The IAA affirmed the decision not to grant the Applicant a protection visa on 22 August 2017.
The IAA said that the background of the Applicant could be summarised as this: that he was an Afghan citizen of Hazara ethnicity; he was born in the Qarabagh district in Ghazni province, and he practices Shia Islam. His mother is deceased; his father and one married sister live in Ghazni city. One sister and one brother are in Mazar-e-Sharif, and three brothers are living and working in Saudi Arabia, and three sisters and their families live in Pakistan and the Applicant lived in Qarabagh when he was young, during the time the Taliban was in power.
During the rule of the Taliban, men of the village were taken away to undertake construction work, and, if they did not follow, they were beaten. The Applicant claimed that his eldest brother was taken on at least two occasions and forced to work. When the Applicant was about seven or eight years of age, his family decided to move to Ghazni city where his father ran a business selling firewood; however, due to the control of Ghazni city and harassment by the Taliban, they were unable to work…

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: [2018] FCCA 2965
Decision Date: 3 October 2018

CaseChat Overview and Summary

The applicant, EDH17, 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 central legal issue before the Court was whether the Minister's delegate had properly considered all the relevant evidence when assessing the applicant's claims for protection, particularly in relation to the risk of persecution in their country of origin. The Court was required to determine if the delegate's adverse credibility findings were reasonably open on the evidence presented.

Judge Vasta found that the delegate had failed to adequately address certain aspects of the applicant's evidence, leading to an error in the assessment of credibility. The Court applied the principles of administrative law, emphasizing that decision-makers must engage with all material before them and provide reasons that are sufficiently detailed to demonstrate that consideration has been given to the evidence. The delegate's failure to properly consider specific pieces of evidence meant that the decision was not open to be made.

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

Orders