Erm19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 254
•17 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 254
File number(s): ADG 474 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 November 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa (SHEV) – whether the Authority made a jurisdictional error in assessing the applicant’s case – no jurisdictional error made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) s 36 Cases cited: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 Division: Division 2 General Federal Law Number of paragraphs: 15 Date of last submission/s: 9 November 2021 Date of hearing: 9 November 2021 Place: Sydney Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Mr Creedon ORDERS
ADG 474 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERM19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
17 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondent’s costs, fixed in the amount of $3930.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Pakistan. The applicant claims to be a Pashtun Bangash Shia, from a village near Parachinar in Pakistan. The applicant’s family remain living in their home village. The applicant first arrived in Australia in early 2013 as an unauthorised maritime arrival. On 16 December 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).
On 30 September 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a SHEV. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review.
In a decision dated 15 November 2019, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV. For reasons that will become apparent, it is not necessary to summarise the Authority’s decision other than to say that, the applicant did not meet the criteria for protection under s 36(2)or (aa) of the Migration Act 1958 (Cth) (“the Act”).
The applicant now seeks judicial review of the Authority’s decision.
GROUND OF JUDICIAL REVIEW
In an Initiating Application filed with the Court on 26 November 2019, the applicant relies on a single ground of judicial review as follows:
Ground One
The Immigration Assessment Authority made a jurisdictional error in my case.
The Court notes that no particulars were provided with in support of the above application.
CONSIDERATION
The applicant appeared before the Court a via video conferencing facility. The applicant was assisted by an Interpreter. The applicant confirmed information before the Court that he had departed Australia on 21 December 2020 and had not returned to Australia since then. Information before the Court, which was confirmed by the solicitor appearing for the first respondent, indicates that the applicant’s Bridging visa ceased on 21 December 2020 and that the applicant has no right to lawfully return to Australia.
The first respondent submitted that, as the applicant sought a SHEV, a condition precedent for the grant of that visa was that the applicant should be on shore. Even if jurisdictional error did exist in the Authority’s decision, which was not conceded, it would be futile to quash the Authority’s decision and remit it for further consideration as the same outcome was inevitable, given the applicant was now offshore. There was thus no reasonable prospect of success in the matter
This issue was put to the applicant. The applicant confirmed that he was now residing at his family’s home in Pakistan. The applicant stated that he left Australia as his mother was ill. The applicant said he knew little of the law but asked to be granted a visa that would allow him to come back into Australia. The applicant said he was still afraid of the Taliban, who had killed three of his friends, and would surely kill him in due course.
The applicant stated that he had asked the Department of Immigration to be allowed to go back to Pakistan for a period of 14 days but this was refused. Notwithstanding this, the applicant went anyway.
Firstly, the Court notes that the single ground of judicial review relied upon by the applicant simply involves a bare assertion or jurisdictional error without any particulars. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
Further, given the applicant has now departed Australia, and has no right of re-entry, the Court accepts the first respondent’s submission that it would be futile to consider the matter further as the Authority would be bound to come to the same conclusion, given a condition precedent for the granting of a SHEV is that the applicant must be on shore in Australia.
Accordingly, the matter is dismissed. It has no reasonable prospects of success due to the applicant being offshore and no longer eligible for the visa claimed. Further, the lack of particulars in the single ground of judicial review makes it impossible for the first respondent to meaningfully reply to the ground of judicial review.
As the applicant is unrepresented, the Court has perused the decision record but is unable to find any error in the reasoning of the Authority.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 17 November 2021
0
1
1