EEM17 v Minister for Home Affairs - [2019] FCCA 3396

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEM17 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3396

Catchwords:
MIGRATION – Protection visa – decision of the Immigration Assessment Authority – whether the IAA properly considered claims – whether the IAA was required to give the applicant an opportunity to comment on claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 473CB, 473DB, 473DC, 473DD, 473DE, 476

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193
BJB16 v Minister for Immigration & Border Protection [2018] FCAFC 49
Craig v State of South Australia (1995) 184 CLR 163

DGZ16 v Minister for Immigration & Border Protection (2018) 258 FCR 551

Applicant:

EEM17

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 668 of 2018

Judgment of:

Judge Kendall

Hearing date:

20 November 2019

Date of Last Submission:

20 November 2019

Delivered at:

Perth

Delivered on:

26 November 2019

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr M Sunits

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 668 of 2018

EEM17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed in this Court on 14 December 2018 the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 4 December 2018.
The IAA’s decision affirmed a decision of the delegate of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court the applicant must show that the IAA has made a jurisdictional error.
The Court had before it the applicant’s application for judicial review, a Court Book numbering 353 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 6 November 2019.
At the hearing on 20 November 2019 the applicant had…

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 3396
Decision Date: 26 November 2019

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, EEM17, sought judicial review of a decision made by the Minister for Home Affairs. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The applicant alleged that the decision was unlawful and unreasonable.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate of the Minister had properly considered all relevant factors and applied the correct legal principles in assessing the applicant's claims for protection, particularly in light of the applicant's stated fear of persecution.

Justice Kendall found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding their fear of persecution. Specifically, the delegate's assessment of the applicant's credibility and the objective reasonableness of their fear was found to be deficient. The Court held that this failure constituted a jurisdictional error, rendering the decision to refuse the visa unlawful. The Court quashed the decision of the Minister.

Orders