EVN18 v Minister for Immigration - [2020] FCCA 2405

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVN18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2405

Catchwords:
MIGRATION – Application for judicial review – Immigration Assessment Authority – protection visa – new information – relevant information – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DE

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

BIN18 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2020] FCA 1094

CID16 v Minister for Immigration & Anor [2017] FCCA 485

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

EFX18 v Minister for Immigration & Anor [2019] FCCA 3440

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

DDM17 v Minister for Home Affairs [2019] FCA 1510

DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157

BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079

ANA18 v Minister for Home Affairs [2018] FCA 1854

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000]

FCA 261

SZCJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006]

FCA 48

AXL17 v Minister for Immigration and Border Protection (No 2) [2019] FCA

778

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

AssociatedProvincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223
Attorney-General (NSW) v Quin [1990] HCA 21
Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

BUD17 v Minister for Home Affairs [2018] FCAFC 140

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 117

Minister for Aboriginal AffairsvPeko- Wallsend Ltd [1986] HCA 40; (1986)

162 CLR 24

Applicant:

EVN18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

LNG 62 of 2018

Judgment of:

Judge Riethmuller

Hearing date:

7 May 2020

Date of Last Submission:

21 May 2020

Delivered at:

Melbourne

Delivered on:

28 August 2020

REPRESENTATION

Counsel for the Applicant:

Mr Barns

Solicitors for the Applicant:

Tasmanian Refugee Legal Service

Counsel for the First Respondent:

Mr Ciolek

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $11,200.50.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

LNG 62 of 2018

EVN18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

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 2405
Decision Date: 28 August 2020

CaseChat Overview and Summary

The applicant, EVN18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) to affirm the refusal of their application for a protection visa. The Minister for Immigration was the respondent.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the IAA had erred in law by failing to consider certain information provided by the applicant as "new information" and "relevant information" under the *Migration Act 1958* (Cth) and associated regulations. Specifically, the applicant contended that the IAA should have treated this information as requiring a fresh assessment of their protection claims, rather than simply affirming the original refusal.

Judge Riethmuller reasoned that the IAA's role was to consider whether the information provided was "new" and "relevant" in a way that would have materially affected the outcome of the original assessment. The Court found that the information provided by the applicant did not introduce any new claims or circumstances that were not already considered or could have been considered by the original decision-maker. Furthermore, the Court determined that the information did not raise any matters of principle that warranted a departure from the established assessment framework. Consequently, the IAA was not obliged to conduct a fresh assessment based on the information presented.

The application for judicial review was dismissed.

Orders