EDS16 v Minister for Immigration - [2018] FCCA 2271

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDS16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2271

Catchwords:

MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – application for protection visa – unauthorised marine arrival – claim of persecution on the basis of ethnicity, political opinions or member of a particular social group – fast track decision – nature of review – failure by applicant to particularise grounds of review – country information central to decision – real chance – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5; 5H; 5J; 35A; 36(2); 46A; 65; 473
Migration Regulations 1994, Schedule 2

Cases cited:

BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958

BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179

SZNXA v Minister for Immigration & Citizenship [2010] FCA 775

Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176

BSJ16 v Minister for Immigration & Border Protection [2017] FCAFC 78

NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Minister for Immigration v Jia Legeng (2001) 244 CLR 427

SBBA v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCAFC 90

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437

Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR611

Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Minister for Immigration & Border Protection v SZUXN [2016] FCA 516

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

EDS16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 447 of 2016

Judgment of:

Judge Brown

Hearing date:

21 March 2018

Date of Last Submission:

21 March 2018

Delivered at:

Adelaide

Delivered on:

30 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Ford

Solicitors for the Applicant:

Hugh Ford

Counsel for the First Respondent:

Mr O'Leary

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

Submitting appearance

ORDERS

The application filed 30 December 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 447 of 2016

EDS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks a judicial review of a determination of the Immigration Appeals Authority,[1] made on 9 December 2016. In the relevant decision, the IAA confirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection,[2] made on 18 August 2016, not to grant the applicant a protection visa, pursuant to the provisions of the Migration Act

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 2271
Decision Date: 30 August 2018

CaseChat Overview and Summary

EDS16 (the applicant) sought judicial review of a decision made by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. The applicant, an unauthorised marine arrival, claimed they faced persecution based on their ethnicity, political opinions, or membership of a particular social group. The IAA had made a "fast track" decision regarding the application.

The primary legal issue before the Federal Court was the nature and scope of judicial review of an IAA decision, particularly in circumstances where the applicant had failed to particularise the grounds of their review application. The court also considered the role of country information in the IAA's decision-making process and the correct application of the "real chance" test in assessing the risk of harm to the applicant.

Judge Brown reasoned that the judicial review of an IAA decision is limited to assessing whether the IAA acted lawfully, not to re-examining the merits of the protection claim itself. The court found that the applicant had not adequately particularised their grounds of review, thereby failing to establish any error of law on the part of the IAA. The IAA's reliance on country information was found to be appropriate, and the application of the "real chance" test was not vitiated by any legal error. Consequently, the application for judicial review was dismissed.

Orders