Edi18 v Minster for Home Affairs - [2019] FCCA 631

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDI18 v MINSTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 631

Catchwords:
MIGRATION – Review of administrative appeals decision – interpretation of s.91WA(1)(b) of the Migration Act – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91WA; 91WA(1); 91WA(1)(a); 91WA(1)(b)

Cases cited:

BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72

Applicant:

EDI18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 818 of 2018

Judgment of:

Judge Vasta

Hearing date:

11 March 2019

Date of Last Submission:

11 March 2019

Delivered at:

Brisbane

Delivered on:

15 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr R.Hii

Solicitors for the Applicant:

AustralAsia Law

Counsel for the First Respondent:

Mr B. McGlade

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The Application filed 10 August 2018 and amended on 11 March 2019 is dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 818 of 2018

EDI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Introduction

In 2014, the Migration Act 1958 (Cth) (“the Act”) was amended by adding s.91WA so that the Minister must refuse to grant a protection visa to an Applicant if the Applicant provided a bogus document or the Minister was satisfied that the Applicant destroyed or disposed of documentary evidence of their identity.
The main issue in this matter is whether s.91WA of the Act applies to this Applicant

History

The Applicant is a citizen of Vietnam. He arrived in Australia as an unlawful maritime arrival on 19 May 2013.
At his biodata interview on 19 June 2013, the Applicant gave his name as Hoang Anh Hung with a date of birth of 15 July 1996. Notwithstanding that he was claiming to be under the age of 17, the department determined that he was actually over the age of 18. This meant that he was sent to another detention centre.
At his irregular maritime arrival entry interview on 3 July 2013, the Applicant maintained his false name and, because the Department had concluded that he was over the age of 18, his date of birth was recorded as 15 July 1994. He said that he had no documentation to prove his identity but that he could contact his parents to see if they could give him a birth certificate.
He told the department that he had no members of his family travelling with him on the boat and that he did not know anyone on the boat prior to boarding the boat. He said that he had never travelled outside of Vietnam before he made the journey to Australia. He said that he had never obtained or held a passport.
After the interview, he was issued with a departmental “IMMI card” in the false name and with the false date of…

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 631
Decision Date: 15 March 2019

CaseChat Overview and Summary

The applicant, Edi18, sought judicial review of a decision made by the Minister for Home Affairs. The dispute concerned the interpretation and application of section 91WA(1)(b) of the *Migration Act 1958* (Cth) in relation to an administrative appeals decision. The matter came before Judge Vasta of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the decision under review was affected by jurisdictional error. This required the Court to determine the correct interpretation of section 91WA(1)(b) of the *Migration Act* and whether the delegate's application of that provision to the facts of Edi18's case constituted a failure to exercise jurisdiction or an exercise of jurisdiction in a manner that was legally invalid.

Judge Vasta found that jurisdictional error had not been established. The Court's reasoning focused on the proper construction of section 91WA(1)(b), which relates to the circumstances in which a person may be refused a visa on character grounds. The Court concluded that the delegate had correctly interpreted and applied the relevant legislative provisions and that there was no basis to find that the decision was affected by jurisdictional error. Consequently, the application was dismissed.

Orders