EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The case of EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involves an appeal against a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of the Immigration Assessment Authority's (IAA) affirmation of a delegate's decision not to grant the appellant a Safe Haven Enterprise visa. The primary issues before the court were whether the IAA failed to consider or engage adequately with the expert reports provided by the appellant concerning the risk to Shia/Hazaras in Afghanistan, resulting in a failure to give proper active consideration to those reports or conduct the review, and whether the IAA unreasonably failed to consider getting a Department of Foreign Affairs and Trade (DFAT) country report on Afghanistan prepared in September 2016.

The court considered the appellant's submissions that the IAA was bound by certain sections of the Migration Act and had a duty to consider the most recent DFAT report. The court noted that while the IAA was required to make its decision on the basis of material available to it at the time of the decision, it was not necessarily a jurisdictional error for the IAA to rely on an earlier DFAT report if it was satisfied with the information it contained. The court also rejected the appellant's argument that the IAA had discretion in determining the test in section 36 of the Migration Act as to whether Australia has protection obligations because the person is a refugee. The court found that there was no element of discretion in the legal test for being a refugee and that the IAA was required to apply the tests set out in sections 5H and 5J of the Migration Act in determining whether it was satisfied that the appellant was a refugee by reason of having a well-founded fear of persecution.

The court dismissed the appeal and ordered that the appellant must pay the first respondent's costs as agreed or taxed. The court found that the IAA's decision was not illogical, irrational or legally unreasonable and that it had given proper consideration to the expert reports and other country information provided to it. The court also found that the IAA was not required to obtain the September 2016 DFAT report if it was satisfied with the information contained in the February 2016 DFAT report and other country information.