Fba17 v Minister for Immigration - [2019] FCCA 184

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBA17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 184

Catchwords:
MIGRATION – Application for judicial review – protection visa – procedural fairness – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424AA

Cases cited:

BMV16 v Minister for Home Affairs [2018] FCAFC 90

Applicant:

FBA17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2507 of 2017

Judgment of:

Judge Riethmuller

Hearing dates:

3 August 2018 and 25 October 2018

Date of Last Submission:

25 October 2018

Delivered at:

Melbourne

Delivered on:

31 January 2019

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent:

Ms Spencer

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2507 of 2017

FBA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the AAT’) made on 26 October 2017, affirming a decision of a delegate (on 3 May 2017) refusing to grant the applicant a protection visa.
The applicant arrived in Australia as an unauthorised maritime arrival on 21 October 2010. The applicant applied for a Temporary Protection visa on 23 December 2016.
The matter has had a protracted history, as set out by the first respondent in written submissions filed 20 July 2018:
4 The applicant has a protracted immigration history since arriving as an unauthorised maritime arrival on 21 October 2010. [FN: This has been taken from the delegate’s decision record dated 3 May 2017].
4.1 The applicant applied for a Refugee Status Assessment, which was finalised on 2 May 2011. The delegate found that the applicant was an Iraqi born stateless Faili Kurd who had been residing in Iran. The delegate accepted that Faili Kurds faced discrimination in Iran but that the harm feared did not amount to persecution.
4.2 The applicant sought Independent Merits Review, which was finalised on 27 July 2012. The Reviewer found that the applicant was a Faili Kurd born in Iraq and that he was now a citizen of Iran, and did not accept that Faili Kurds are at risk of serious harm or discrimination due to their ethnicity.
4.3 A Stateless Status Assessment was completed on 18 February 2014. The Department contacted the applicant's employer in Iran who stated that the applicant was an Iranian citizen with Iranian documents. It was concluded that the applicant was a documented Iranian national. It was also concluded as part of this Assessment that training certificates submitted by the applicant were fraudulent.
4.4 An International Treaties Obligation Assessment was initiated on 15 May 2015 in relation to the disclosure of the applicant's information on the Department's website in January 2014. It concluded that there was no credible information to dispute the…

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.

Keep reading for free

Create a free CaseChat account to read Fba17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 184
Decision Date: 31 January 2019

CaseChat Overview and Summary

The applicant, Fba17, sought judicial review of a decision made by the Minister for Immigration concerning an application for a protection visa. The dispute centred on whether the Minister's decision-making process had afforded the applicant procedural fairness. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Minister had breached the duty of procedural fairness owed to the applicant in the assessment of their protection visa application. This involved considering whether the applicant had been given adequate notice of adverse information or adverse findings that might be made, and whether they had been afforded a reasonable opportunity to respond to such information or findings.

Judge Riethmuller found that there were no matters of principle raised by the application that warranted intervention. The court concluded that the Minister's decision-making process had not fallen short of the requirements of procedural fairness. Consequently, the application for judicial review was dismissed.

Orders