EIX18 v Minister for Immigration - [2020] FCCA 619

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIX18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 619

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa (SHEV) – significant country information adopted by Authority – careful consideration of all evidence by Authority – findings of Authority open after all evidence weighed up – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(aa), 36(2A) 46A, 473CB

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Applicant:

EIX18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 442 of 2018

Judgment of:

Judge Egan

Hearing dates:

18 February 2020, 9 March 2020, 10 March
2020

Date of Last Submission:

10 March 2020

Delivered at:

Brisbane

Delivered on:

19 March 2020

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the First Respondent:

Mr Lettenmaier, Solicitor of Sparke Helmore

Second Respondent:

Submitting appearance

ORDERS

The application for review filed on 23 August 2018 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the amount $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 442 of 2018

EIX18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Afghanistan who arrived in Australia (Christmas Island) on 29 June 2013 as an unauthorised maritime arrival.
On 2 September 2016 the Department notified the applicant that the Minister had lifted the bar pursuant to the provisions of s.46A of the Migration Act 1958 (Cth) (‘the Act’), and the applicant was invited to apply for a Temporary Protection (Subclass 785) Visa or a Safe Haven Enterprise Visa (SHEV). On 21 April 2017 the applicant applied for a SHEV.
On 23 August 2017 the applicant attended an interview before a delegate to the Minister. On 10 October 2017 the delegate refused to grant the SHEV to the applicant.
On 13 October 2017 the matter was referred to the Immigration Assessment Authority (‘the Authority’) for review. On 4 December 2017 the applicant provided written submissions and further evidence to the Authority via his legal representatives.
On 19 July 2018 the Authority affirmed the delegate’s decision.
On 23 August 2018 the applicant filed an originating application for review of the decision of the Authority. The applicant was represented by lawyers at the time of filing. The grounds for review as set out in the application were as follows:
“Grounds of application
1. The Tribunal made a jurisdictional error in that it unreasonably concluded, and/or relied on unreliable information and/or addressed the wrong question in concluding, that the Applicant, an Afghani Hazara Shia, does not have a well-founded fear of persecution or faces a real risk of significant harm for reasons of his religious and ethnic profile, violence in…

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.

Continue reading EIX18 v Minister for Immigration

Details

AGLC: Eix18 v Minister for Immigration [2020] FCCA 619
Case: [2020] FCCA 619
Decision Date: 19 March 2020

CaseChat Overview and Summary

The applicant, EIX18, sought judicial review of a decision by the Minister for Immigration to refuse their application for a Safe Haven Enterprise Visa (SHEV). The dispute concerned the Minister's assessment of the applicant's claims and the adoption of significant country information in reaching the decision. The matter was heard by Judge Egan 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 SHEV application was affected by jurisdictional error. This required the Court to consider whether the Minister had properly and carefully considered all the evidence before them, including the significant country information relied upon, and whether the findings made were open to the Minister on the evidence presented.

Judge Egan found that the Authority had undertaken a careful consideration of all the evidence. The Court determined that the findings made by the Authority were open to them after weighing up all the evidence, including the significant country information. Consequently, the Court concluded that no jurisdictional error had occurred in the decision-making process.

The application for judicial review was dismissed.

Orders