EWF18 v Minister for Immigration - [2020] FCCA 447

FEDERAL CIRCUIT COURT OF AUSTRALIA

EWF18 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 447

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – first applicant claiming a fear of harm in Iran – first applicant not believed – whether the Authority overlooked evidence or failed to consider the possibility of it being wrong considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 473DA, 473GB

Cases cited:

First Applicant:

EWF18

Second Applicant:

EWG18

Third Applicant:

EWH18

Fourth Applicant:

EWI18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESMENT AUTHORITY

File Number:

SYG 2651 of 2018

Judgment of:

Judge Driver

Hearing date:

28 February 2020

Delivered at:

Sydney

Delivered on:

31 March 2020

REPRESENTATION

Counsel for the Applicants:

Mr B Zipser

Solicitors for the Applicants:

Stamford Law

Counsel for the Respondents:

Ms N Laing

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application as amended on 6 February 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2651 of 2018

EWF18

First Applicant

EWG18

Second Applicant

EWH18

Third Applicant

EWI18

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 August 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are four applicants, who are a husband (first applicant), his wife (second applicant) and two children. The relevant protection claims were made by the first applicant.
Background facts relating to this matter are set out in the submissions of the parties.
On 29 September 2012 the applicants arrived in Australian waters (at Christmas Island) by boat as unauthorised maritime arrivals.[1]
[1] Court Book (CB) 75, 244
On 28 November 2012 the first applicant and the second applicant each participated in an “Irregular Maritime Arrival Entry Interview”.[2]
[2] CB 1-19, 20-34
Between September and November 2012 the applicants were in detention centres, following which they were…

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 447
Decision Date: 31 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) refused protection visas to the first applicant, who claimed a fear of harm in Iran, and the second applicant, who was the first applicant's child. The applicants sought judicial review of the AAT's decision.

The primary legal issue before the court was whether the AAT had overlooked relevant evidence or failed to consider the possibility that its adverse credibility findings against the first applicant might be wrong, thereby constituting a jurisdictional error.

Judge Driver found that the AAT had adequately considered the evidence presented by the first applicant and had provided reasons for its adverse credibility findings. The AAT's decision-making process did not demonstrate a failure to consider the possibility of error, nor did it overlook crucial evidence. Therefore, no jurisdictional error was established.

Orders