ESQ18 v Minister for Immigration - [2020] FCCA 472

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESQ18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 472

Catchwords:
MIGRATION – Temporary Protection (Class XD) visa – decision of the Immigration Assessment Authority – whether the IAA acted unreasonably in not exercising the discretion in s.473DC – whether the IAA erred in choosing not to consider a claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, Div.3, ss.5, 5H, 5J, 36, 46A, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB

Cases cited:

Minister for Immigration & Border Protection v DZU16 [2018] FCAFC 32

Applicant:

ESQ18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 481 of 2018

Judgment of:

Judge Kendall

Hearing date:

25 February 2020

Date of Last Submission:

25 February 2020

Delivered at:

Perth

Delivered on:

6 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr R Saul Jahnke

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Ms S Oliver

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for judicial review is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 481 of 2018

ESQ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application filed in this Court on 15 November 2019, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 24 August 2018.
The IAA affirmed a decision of the first respondent (the “Minister”) not to grant the applicant a Temporary Protection (Class XD) visa (the “visa”).
To obtain assistance from this Court, the applicant must establish that the IAA has fallen into jurisdictional error.
The Court had before it an amended application for judicial review, a Court Book (“CB”) numbering 206 pages (marked as Exhibit 1), an outline of written submissions from the applicant dated 15 November 2019 and two outlines of written submissions from the Minister dated 4 November 2019 and 2 December 2019.
The applicant was represented by Mr Saul Jahnke. The Minister was represented by Ms Oliver of Counsel. The Court thanks both lawyers for the quality of their written and oral advocacy.

Background

The Minister’s written submissions (at Part II) dated 4 November 2019…

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: [2020] FCCA 472
Decision Date: 6 March 2020

CaseChat Overview and Summary

The applicant, ESQ18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Temporary Protection (Class XD) visa. The core of the dispute revolved around whether the IAA had acted unreasonably in its assessment of ESQ18's claims and whether it had improperly exercised its discretion under section 473DC of the relevant legislation.

The primary legal issues before the court were whether the IAA had committed a jurisdictional error by failing to exercise its discretion under section 473DC, and whether the IAA had erred in law by choosing not to consider a particular claim made by the applicant. The court was tasked with determining if the IAA's decision-making process was so unreasonable that it amounted to a jurisdictional error.

Judge Kendall found that the IAA had not committed a jurisdictional error. The court reasoned that the IAA had considered the material before it and had made a decision within its powers. The discretion under section 473DC was found to have been properly considered, and the IAA's decision not to consider a specific claim was not deemed an error of law in the circumstances. Consequently, the application for judicial review was dismissed.

Orders