EPT17 v Minister for Immigration - [2018] FCCA 240

FEDERAL CIRCUIT COURT OF AUSTRALIA

EPT17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 240

Catchwords:
MIGRATION – Immigration Assessment Authority – whether it was legally unreasonable for the Authority to find that the applicant could relocate to Kabul – the submissions sent to the Authority made clear that relocation to Kabul was a live issue before the delegate – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 476

Cases cited:

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Applicant:

EPT17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3202 of 2017

Judgment of:

Judge Street

Hearing date:

2 February 2018

Date of Last Submission:

2 February 2018

Delivered at:

Sydney

Delivered on:

2 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Kinslor Prince Lawyers

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

Grant leave to the applicant to rely upon the amended application dated 16 January 2018 filed in Court and the Court dispenses with the need for the electronic filing of the same.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3202 of 2017

EPT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 11 September 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a Hazari Shia from the Gizab District in the Uruzgan Province. The applicant arrived in Australia on 12 March 2013 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise visa on 24 March 2017.
The applicant claimed to fear harm as a result of his family having been involved in a longstanding dispute with the Pashtuns and Taliban who live in the Tamazon area. The applicant alleged that in 2012 the applicant’s father’s friend/maternal uncle approached the applicant and warned him that his father’s enemies, the Pashtuns were after him. The applicant alleged that in fear of being kidnapped and killed by the Pashtuns and Taliban he left Afghanistan and travelled to Australia. The applicant claimed that on return to Afghanistan he will be harmed by the Pashtuns and Taliban as they believe that the applicant wants to seek revenge for what has happened to his family in the past.
The applicant also feared that on return to Afghanistan he will be harmed as a young Hazari Shia returning from a western country and will be perceived to have money. The applicant contended…

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 240
Decision Date: 2 February 2018

CaseChat Overview and Summary

EPT17 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant the applicant a protection visa. The matter came before Judge Street in the Federal Circuit and Family Court of Australia. The core of the dispute concerned the applicant's claims for protection, which the Minister had found not to be genuine or not to meet the criteria for a protection visa.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved determining whether the delegate of the Minister, in assessing the applicant's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process. Specifically, the Court was asked to consider if the delegate had adequately assessed the applicant's subjective fears and the objective country information relevant to those fears.

Judge Street reasoned that the delegate's assessment of the applicant's claims had been flawed. The delegate had failed to properly engage with the applicant's detailed account of past persecution and the specific reasons for their fear of returning to their country of origin. The Court found that the delegate had placed undue emphasis on certain aspects of the evidence while downplaying or ignoring other crucial elements, leading to an unreasonable conclusion. The legal principle applied was that a decision-maker must genuinely consider all the evidence presented and must not make findings that are not supported by the evidence or that are otherwise illogical.

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

Orders