Ekn17 v Minister for Immigration - [2020] FCCA 3022

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKN17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3022

Catchwords:
MIGRATION – Application for judicial review of decision made by the Immigration Assessment Authority – whether Authority acted unreasonably – whether Authority failed to exercise s.473DC – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.36, 473C, 473CC, 473DC.

Cases cited:

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

Applicant:

EKN17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2640 of 2019

Judgment of:

Judge Obradovic

Hearing date:

3 and 4 August 2020

Date of Last Submission:

4 August 2020

Delivered at:

Parramatta

Delivered on:

11 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Zipser

Solicitors for the Applicant:

Stamford Law

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue, quashing the decision of the second respondent (Authority) dated 23 September 2019 to affirm the decision of a delegate (delegate’s decision) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise Visa.
A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the application referred to it by the Minister under s.473C of the Migration Act 1958 (Cth) for review of the delegate’s decision.
A writ of prohibition issue, prohibiting the Minister and his delegates, servants and agents from acting upon or giving effect to the Authority decision.
The Minister pay the applicant’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2640 of 2019

EKN17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority (“Authority”), made on 23 September 2019, which affirmed the decision of the delegate of the Minister…

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: [2020] FCCA 3022
Decision Date: 11 November 2020

CaseChat Overview and Summary

The applicant, Ekn17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) affirming a delegate's decision to refuse the applicant a Safe Haven Enterprise Visa. The proceedings were heard by Judge Obradovic.

The central legal issues before the court were whether the IAA had acted unreasonably in its decision-making process and whether it had failed to exercise its powers under section 473DC of the *Migration Act 1958* (Cth). The applicant contended that these failures constituted jurisdictional error.

Judge Obradovic found that jurisdictional error had been established. The court's reasoning, though not detailed in the provided text, led to the conclusion that the IAA's decision was vitiated by such error.

Consequently, the court ordered that a writ of certiorari issue to quash the IAA's decision of 23 September 2019. Further, a writ of mandamus was ordered, remitting the matter to the IAA for redetermination according to law. A writ of prohibition was also issued, preventing the Minister and his delegates from acting upon the quashed IAA decision. The Minister was ordered to pay the applicant's costs.

Orders

Orders of the court

ORDERS

1. A writ of certiorari issue, quashing the decision of the second respondent (Authority) dated 23 September 2019 to affirm the decision of a delegate (delegate’s decision) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise Visa.

2. A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the application referred to it by the Minister under s.473C of the Migration Act 1958 (Cth) for review of the delegate’s decision.

3. A writ of prohibition issue, prohibiting the Minister and his delegates, servants and agents from acting upon or giving effect to the Authority decision.

4. The Minister pay the applicant’s costs as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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