EOW18 v Minister for Home Affairs - [2019] FCCA 3554

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOW18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3554

Catchwords:
MIGRATION – Safe Haven Enterprise (Class XE) (Subclass 790) visa – decision of the Immigration Assessment Authority – whether IAA was required to put information to the applicant – whether IAA erred in its consideration of country information – whether IAA’s findings were illogical – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 473CB, 473DA, 473DC, 473DD, 473DE, 473GA, 473GB, 476

Cases cited:

Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
BMY16 v Minister for Immigration [2017] FCCA 2445
CRI026 v The Republic of Nauru [2018] HCA 19
DQA17 v Minister for Immigration [2018] FCCA 2418
EAT17 v Minister for Immigration & Anor [2018] FCCA 3036
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

MZANX v Minister for Immigration & Border Protection [2017] FCA 307

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 19
SZSRR v Minister for Immigration & Border Protection [2017] FCA 328

Applicant:

EOW18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 471 of 2018

Judgment of:

Judge Kendall

Hearing date:

20 November 2019

Date of Last Submission:

20 November 2019

Delivered at:

Perth

Delivered on:

12 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr N Draper

Solicitors for the Applicant:

D’Angelo Legal

Counsel for the First Respondent:

Ms E Tattersall

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The applicant have leave to rely on the grounds as articulated in paragraphs 26 and 33 of the first respondent’s written submissions dated 15 October 2019.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 471 of 2018

EOW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed in this Court on 4 September 2018 the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 9 August 2018.
The IAA’s decision affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the “visa”).
This proceeding is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). It is uncontroversial that to be successful in this Court, the applicant must demonstrate that the IAA has fallen into jurisdictional error.
The materials before the Court include the application filed by the applicant (then unrepresented) on 4 September 2018, a Court Book numbering 192 pages (marked as Exhibit 1), an outline of submissions filed by the applicant on 7 October 2019 (now legally represented) and an outline of submissions filed by the Minister on 15 October 2019.

Background

The background to this matter can be summarised as follows.
The applicant is a citizen of Pakistan.…

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: [2019] FCCA 3554
Decision Date: 12 December 2019

CaseChat Overview and Summary

The applicant, EOW18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa. The core of the dispute concerned the IAA's assessment of the applicant's claims and the information it considered in reaching its decision. The matter came before Judge Kendall of the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the IAA was under a legal obligation to put certain information to the applicant for comment before making its decision, whether the IAA erred in its consideration of country information relevant to the applicant's case, and whether the IAA's findings were so illogical as to constitute jurisdictional error.

Judge Kendall found that the IAA was not required to put the information in question to the applicant for comment, as the information did not introduce new adverse material that was not already before the IAA or that the applicant had not had an opportunity to address. The court also determined that the IAA had adequately considered the country information and that its findings were not illogical. Consequently, the court concluded that no jurisdictional error had occurred.

The application for judicial review was dismissed.

Orders