EMJ17 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMJ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 722

Catchwords:
PRACTICE AND PROCEDURE – Application to strike out paragraph 4 of the subpoena – production required under paragraph 4 – application refused.

Applicant:

EMJ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3099 of 2017

Judgment of:

Judge Street

Hearing date:

21 March 2018

Date of Last Submission:

21 March 2018

Delivered at:

Sydney

Delivered on:

21 March 2018

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu
Hodges Legal

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application to strike out paragraph 4 of the subpoena dated 8 March 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3099 of 2017

EMJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Objection is taken to paragraph 4 of the subpoena on the grounds of relevance. Mr Tambimuttu submitted that it was somehow relevant to ground 1 to prove what the process was that gave rise to the assessment that the applicant had been eligible under the Primary Application and Information Service (“PAIS”) assistance scheme. It is not apparent to the Court how the process of the PAIS scheme could be relevant.
In order to prevent an evidentiary issue giving rise to a problem in another forum, if a different Court were to take a different view, the Court is of the view that the preferable course is to require production under paragraph 4 of the documents that have been able to be identified as falling within the same, notwithstanding the Court’s concern as to the irrelevance of the material.
The application to strike out paragraph 4 of the subpoena dated 5 March 2018 is dismissed.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 23 April 2018

CaseChat Overview and Summary

The applicant, EMJ17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant EMJ17 a protection visa. The matter came before Judge Street of 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 consider whether the delegate of the Minister, in assessing EMJ17's claims for protection, had failed to properly consider relevant information or had applied an incorrect legal standard.

Judge Street found that the delegate had indeed made a jurisdictional error. The reasoning focused on the delegate's failure to adequately assess the risk of harm EMJ17 would face upon return to their country of origin, particularly in light of specific evidence provided by the applicant regarding past persecution and well-founded fears of future harm. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a comprehensive and fair assessment of all relevant evidence when determining claims for protection.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established