EOT17 v Immigration Assessment Authority - [2018] FCCA 3271

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOT17 v IMMIGRATION ASSESSMENT AUTHORITY & ANOR

[2018] FCCA 3271

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Generally

CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Conduct of review – Natural justice

CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Other matters

Legislation:

Migration Act 1958 (Cth), ss.65, 473CA, 473CB, 473CC, 473DB(1), 473DC(1), 473DC(3), 473DD, Pt.7AA

Cases cited:

WAAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 357
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22

Applicant:

EOT17

First Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

BRG 1022 of 2017

Judgment of:

Judge Jarrett

Hearing date:

1 June 2018

Date of Last Submission:

1 June 2018

Delivered at:

Brisbane

Delivered on:

16 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Karp

Solicitors for the Applicant:

Fisher Dore Lawyers

The First Respondent entered a submitting appearance

Counsel for the Second Respondent:

Mr McGlade

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The application filed on 13 October, 2017 and all other outstanding applications filed by the applicant are dismissed.
The applicant pay the second respondent’s costs of and incidental to the application fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1022 of 2017

EOT17

Applicant

And

IMMIGRATION ASSESSMENT AUTHORITY

First Respondent

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

The applicant is a national of Iran. He arrived in Australia by boat on 12 March, 2013. For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival. In December, 2016 the applicant applied for a Safe Haven Enterprise (subclass 790) visa. On 24 January, 2017 he was interviewed by a delegate of the first respondent and on 8 February, 2017 the delegate refused the applicant’s visa application.
Because the delegate’s decision was a

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 3271
Decision Date: 16 November 2018

CaseChat Overview and Summary

The applicant, EOT17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) to affirm the refusal of a protection visa. The dispute concerned the IAA's conduct of the review process under the fast track assessment provisions of the *Migration Act 1958* (Cth).

The primary legal issue before the Federal Court was whether the IAA had breached its duty to afford EOT17 procedural fairness, specifically in relation to the IAA's consideration of new information provided by the applicant after the initial assessment period had closed. The court was asked to determine if the IAA was obliged to consider this information, and if its failure to do so constituted a reviewable error.

Justice Jarrett found that the IAA's obligations under the *Migration Act* and the principles of procedural fairness required it to consider all relevant information before making a decision, even if that information was provided after the usual timeframe for submissions. The court reasoned that the IAA's statutory duty to conduct a review was not confined by the applicant's initial submissions, and that a failure to consider material that might affect the outcome of the review could lead to a jurisdictional error. The IAA's decision was therefore set aside.

Orders