EEM17 v Minister for Immigration - [2018] FCCA 337

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEM17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 337

Catchwords –
MIGRATION – Immigration Assessment Authority – safe haven enterprise (class XE) visa –“new information” – whether detailed submissions supplied to the Tribunal three hours after the handing down of its decision amounted to “new information” under Part 7AA of the Migration Act 1958 (Cth) – IAA read and considered those submissions even though the submissions were supplied after the delegate was functus officio – no disadvantage to this applicant – application of judicial review dismissed.

Legislation:
Migration Act 1958, pt.7AA, ss.36(2)(a), 36(2)(aa), 65, 473DC, 473DD, 473DE
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

Cases cited:
Abebe v Commonwealth (1999) 197 CLR 510
Chhor v Minister for Immigration and Border Protection [2017] FCCA 2135
CSR16 v Minister for Immigration and Border Protection [2017] FCCA 2222
DZU16 v Minister for Immigration and Border Protection [2017] FCCA 851
Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Border Protection v Le (2007) 164 FCR 151
Toura v Minister for Immigration and Border Protection [2017] FCA 1405

Applicant:

EEM17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File number:

PEG 505 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

7 February 2018

Date of last submission:

7 February 2018

Delivered at:

Perth

Delivered on:

7 February 2018

REPRESENTATION

Solicitors for the applicant:

Estrin Saul Lawyers

Counsel for the first respondent:

Mr P J Hannan

Solicitors for the first respondent:

Spark Helmore Lawyers

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Spark Helmore Lawyers

ORDERS

This proceeding is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA AT PERTH

PEG 505 of 2017

EEM17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

This case concerned the refusal of the Immigration Assessment Authority (“IAA”) to grant the applicant a safe haven enterprise (class XE) visa of the four grounds of review on which the applicant initially relied, ground 2 having since been abandoned. Ground 3 related to assertions that the IAA failed to consider certain things. The other ground of review alleged a breach of s.473DE of the

Migration Act 1958
(Cth) (“the Act”). All grounds involved a construction of aspects of Part 7AA of the Act.
The background to this case may be as shortly stated as the applicant’s solicitor recorded in his written submissions filed 24 January 2018. The applicant, a citizen of Sri Lanka of Tamil ethnicity arrived at Cocos Keeling Island on 17 December 2012 as an illegal maritime arrival. On 18 May 2016 he applied for the visa under consideration in this case. The Minister’s delegate decided to refuse…

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 337
Decision Date: 7 February 2018

CaseChat Overview and Summary

The applicant, EEM17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

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 an examination of whether the delegate who made the original decision had properly considered all relevant evidence and applied the correct legal principles in assessing the applicant's claims for protection.

His Honour Judge Wilson found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence regarding past persecution and the risk of future persecution. The Court determined that this failure constituted a jurisdictional error, as it meant the delegate had not undertaken the assessment required by the *Migration Act 1958* (Cth). Consequently, the Minister's decision was vitiated by this error.

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

Orders