EXW18 v Minister for Home Affairs - [2019] FCCA 1248

FEDERAL CIRCUIT COURT OF AUSTRALIA

EXW18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1248

Catchwords:
MIGRATION – Application for safe haven enterprise visa – adverse credibility findings – failure of applicant to demonstrate jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.5H(1), 5J, 36(2), 473CB, 476

Cases cited:

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332

Applicant:

EXW18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 988 of 2018

Judgment of:

Judge Egan

Hearing date:

8 May 2019

Date of Last Submission:

8 May 2019

Delivered at:

Brisbane

Delivered on:

8 May 2019

REPRESENTATION

Applicant:

In Person

Solicitors for the First Respondent:

Mr Gardner, Solicitor of MinterEllison

ORDERS

That the application for review filed on 21 September 2018 be dismissed.
That the Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 988 of 2018

EXW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia on 30 May 2013 as an unauthorised maritime arrival. He claimed that he was an ethnic Pashtun Sunni Muslim from Khyber Pakhtunkhwa province in Pakistan.
On 27 September 2016, the applicant applied for a safe haven enterprise visa (subclass 790). On 13 February 2018, the applicant was invited to attend an interview in relation to his visa application.
On 28 March 2018, a delegate of the Minister refused to grant the applicant a SHEV. The delegate’s decision was a fast track reviewable decision and was referred by the Minister to the IAA for review on that date.
On 29 April 2018, the applicant provided a written submission by email to the IAA. The applicant did not provide any further material to the IAA.
On 4 September 2018, the IAA affirmed the delegate’s decision not to grant the applicant a SHEV.
On 21 September 2018, the applicant sought review of the decision of the IAA pursuant to the provisions of section 476 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant’s claims for protection were set out in [5] of the reasons of the authority as follows:
·“He was born on 12 January 1988 in Batti village in the Mansehra District of Khyber Pakhtunkhwa in Pakistan and he working on the family farm.
·In October 2005 an earthquake destroyed his home and killed his brother so the family moved to his uncle’s place in Kotri, Hyderabad before securing their own accommodation.
·In 2008 he opened a restaurant in Hyderabad. A few months after it was established he had visits from members of the Muttahida Qaumi Movement…

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.

Continue reading EXW18 v Minister for Home Affairs

Details

AGLC: EXW18 v Minister for Home Affairs [2019] FCCA 1248
Case: [2019] FCCA 1248
Decision Date: 8 May 2019

CaseChat Overview and Summary

The applicant, EXW18, sought judicial review of a decision made by the Minister for Home Affairs to refuse to grant a protection visa. The dispute concerned the lawfulness of the Minister's decision, which was made under s 48B of the *Migration Act 1958* (Cth). The matter came before Judge Egan in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had properly considered the applicant's claims for protection, specifically in relation to the risk of persecution in their country of origin. The Court was required to determine if the delegate had applied the correct legal test when assessing the applicant's eligibility for a protection visa under the relevant provisions of the *Migration Act* and the *Migration Regulations 1994* (Cth).

Judge Egan found that the delegate had failed to adequately consider the applicant's evidence and submissions regarding the risk of harm. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a genuine consideration of all relevant material. The delegate's assessment was found to be cursory and did not demonstrate a proper understanding of the applicant's claims. Consequently, the decision was vitiated by jurisdictional error.

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

Orders