EHB17 v Minister for Immigration - [2018] FCCA 304

FEDERAL CIRCUIT COURT OF AUSTRALIA

EHB17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 304

Catchwords:
MIGRATION – Temporary protection visa – grounds of application without particulars – no basis for interfering with factual findings of IAA – application for judicial review dismissed.

Legislation:
Migration Act 1958 (Cth), Pt.7AA, ss.5H, 5J, 36(2)(a)

Cases cited:
Craig v State of South Australia (1995) 184 CLR 163
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant:

EHB17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File number:

PEG 521 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

Applicant in person

Solicitors for the First Respondent:

Sparke Helmore Lawyers

ORDERS

The proceeding before this Court commenced by way of application filed on 21 September 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 521 of 2017

EHB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

By application filed in this court on 21 September 2017, the applicant sought judicial review of a decision of the Immigration Assessment Authority (“IAA”) made on 1 September 2017. The IAA affirmed the decision of a delegate of the Minister for Immigration and Border Protection made on 17 February 2017 to refuse the applicant’s application for a temporary protection visa made on 12 September 2016.
In his application to this court, the applicant relied on three grounds of review, none of which were particularised. The three grounds were as follows, verbatim –
1.Jurisdictional error.
2.Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3.Identifying a wrong issue on a wrong question.[1]
[1] Application filed on 21 September 2017 at p.3.
No details were given of the alleged jurisdictional error for which the applicant contended. Nor did he give details of the alleged bias he asserted. He also did not identify the issue or question he said was wrong.
Today in the hearing before me I asked the applicant, through his interpreter, to tell me in his own words what he said the IAA did wrong in this case. He was unable to meaningfully respond.

Synopsis

For the reasons that follow, in my judgment this application for judicial review must be dismissed. The applicant must pay the Minister’s costs.

Short factual narration

The applicant, a Tamil male from Kandy District, Central Province, Sri Lanka, arrived in Australia on 26 October 2012 as an unauthorised maritime arrival. Almost four years later, he sought a protection visa on 12 September 2016. After the delegate refused the application for a protection visa, it was automatically…

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 304
Decision Date: 7 February 2018

CaseChat Overview and Summary

The applicant, EHB17, 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 came before His Honour Judge Wilson in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to properly consider the applicant's claims for protection, particularly in relation to the risk of persecution in their country of origin.

His Honour Judge Wilson found that the delegate had failed to adequately assess the applicant's evidence regarding the specific circumstances of their fear of persecution. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair consideration of all relevant material. The delegate's assessment was found to be superficial and did not engage with the substance of the applicant's claims, thereby constituting a jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders