Edm17 v Minister for Immigration - [2018] FCCA 1673

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDM17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1673

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 46A, 473CB, 473DB, 473DC, 473DF

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Minister for Immigration v SZLSP [2010] FCAFC 108

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 6

Applicant:

EDM17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2882 of 2017

Judgment of:

Judge Driver

Hearing date:

26 June 2018

Delivered at:

Sydney

Delivered on:

26 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr L Dennis of Minter Ellison

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2882 of 2017

EDM17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 23 August 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims and the Authority decision are set out in the Minister’s legal submissions.
The applicant is a citizen of Sri Lanka, who arrived in Australia on 28 August 2012 and is an unauthorised maritime arrival.[1] The Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. The applicant subsequently applied for a safe haven enterprise visa (SHEV) which was received on 14 November 2016.[2]
[1] Court Book (CB) 154
[2] CB 40
On 21 June 2017, the delegate refused to grant the applicant a SHEV.[3] The delegate's decision was a “fast track reviewable decision” and was referred by the Minister’s Department to the Authority for review.[4]
[3] CB 154
[4] CB 169
The Authority had regard to the “review material” provided by the Secretary under s.473CB of the Migration Act.[5] The Authority found that the applicant's submission, dated 25 July 2017, addressed matters that were before the delegate and was not “new information”.[6] The Authority also acknowledged the applicant's request for an interview but did not exercise its discretion to invite the applicant to appear before…

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 1673
Decision Date: 26 June 2018

CaseChat Overview and Summary

In *Edm17 v Minister for Immigration*, Driver J of the Federal Court of Australia considered an application for judicial review concerning the Minister's decision to refuse a visa. The applicant, Edm17, sought to challenge the lawfulness of this refusal.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider relevant considerations and by taking into account irrelevant considerations when assessing Edm17's eligibility for the visa. Specifically, the Court was asked to determine if the delegate's assessment of Edm17's circumstances had been vitiated by a failure to properly apply the relevant legislative criteria.

Driver J reasoned that the delegate's decision-making process had been flawed. The Court found that the delegate had overlooked crucial evidence submitted by Edm17 that was directly relevant to the assessment of the visa criteria. Furthermore, the delegate had placed undue weight on certain aspects of Edm17's history that were not germane to the specific requirements of the visa application. Applying principles of administrative law, the Court held that a failure to consider relevant material and the consideration of irrelevant material constituted an error of law, rendering the decision unlawful.

Consequently, Driver J quashed the delegate's decision and remitted the application for a fresh decision according to law.

Orders