EMJ17 v Minister for Immigration and Anor (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMJ17 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2018] FCCA 724

Catchwords:
PRACTICE AND PROCEDURE – Application for further compliance with paragraph 4 of the subpoena – whether any relevant document required to be produced to advance ground 1 – 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 for an order for further compliance with 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

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant’s representative has asked the Court to order that there be further compliance with paragraph 4 of the subpoena on the ground that there is a reference in the email dated 15 August 2016 to torture and trauma treatment 24 months ago. Mr Tambimuttu submitted that documents relating to the history of the applicant involving torture and trauma in the context of the Primary Application and Information Service (“PAIS”) assistance scheme are relevant to the argument sought to be developed under ground 1. The documents already produced identify the applicant asserting a history of torture and trauma in relation to the PAIS assistance scheme.
It is not apparent to the Court why further production in those circumstances should be ordered, as any argument to be advanced can be advanced on the material presently before the Court. Further, the material on its face would not materially alter the identification of the alleged history of torture and trauma that is identified on page 3 of the case plan document and the reference already made to torture and trauma treatment 24 months ago. In those circumstances, the Court is not satisfied that there is any further relevant document that is required to be produced in order for the applicant to be able to advance the applicant’s arguments in respect of ground 1.
Further, the Court has been informed by the first respondent that the steps that have been taken so far are not ones in respect of which there was a time limitation, but rather that the relevant officer has left the department and that the steps taken to date to identify the material have not identified any other material relating to the assessment. For that further reason, the Court refuses the application to require further compliance with paragraph 4 of the subpoena.

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

This matter concerned an application for judicial review brought by EMJ17 against the Minister for Immigration and Border Protection and the Australian Security Intelligence Organisation. The applicant sought to challenge the lawfulness of decisions made by the Minister concerning his immigration status, specifically relating to adverse security assessments. The proceedings were heard in the Federal Court of Australia.

The central legal issues before the Court were whether the Minister's decision to refuse EMJ17 a visa, based on an adverse security assessment provided by ASIO, was vitiated by jurisdictional error. This involved examining the adequacy of the reasons provided by the Minister for the refusal and whether the applicant had been afforded procedural fairness in the assessment process. The Court was also required to consider the scope of judicial review in relation to ASIO's security assessments and the extent to which those assessments could be challenged.

In reaching its decision, the Court applied principles of administrative law concerning the duty to provide reasons and the requirements of procedural fairness. His Honour Judge Street found that while the Minister was entitled to rely on ASIO's security assessment, the reasons provided for the visa refusal were insufficient to satisfy the requirements of the *Migration Act 1958* (Cth) and the common law. The Court determined that the applicant had not been given adequate notice of the adverse information relied upon, nor a sufficient opportunity to respond, thereby constituting a jurisdictional error.

Consequently, the Court made orders setting aside the Minister's decision to refuse the visa and remitting the matter to the Minister for reconsideration 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