FBR18 v Minister for Home Affairs - [2019] FCCA 963

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBR18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 963

Catchwords:
MIGRATION – Immigration Assessment Authority.
PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether the findings of the Immigration Assessment Authority appear to be open to it – whether the Immigration Assessment Authority considered new information in accordance with the legislation – no arguable case for the relief claimed – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

AYL15 v Minister for Immigration and Border Protection [2018] FCA 894

CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Minister for immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

AOV18 v Minister for Home Affairs [2018] FCA 1871

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

CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434

EXV17 v Minister for Home Affairs [2018] FCA 1780

ADN18 v Minister for Home Affairs [2018] FCA 1677

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388

BEC17 v Minister for Immigration and Border Protection [2018] FCA 1884

CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967

CVS16 v Minister for Immigration and Border Protection [2018] FCA 951

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

BMP17 v Minister for Home Affairs [2019] FCA 112

Applicant:

FBR18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2770 of 2018

Judgment of:

Judge Emmett

Hearing date:

9 April 2019

Date of Last Submission:

9 April 2019

Delivered at:

Sydney

Delivered on:

9 April 2019

REPRESENTATION

Applicant:

Appeared in person with the assistance of an interpreter

Solicitors for the Respondents:

Mr Aaron Moss
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2770 of 2018

FBR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By application, filed on 28 September 2018, the applicant sought judicial review of a decision of the Immigration Assessment Authority dated 27 August 2018 (“the Authority”) which affirmed a decision of a delegate of first respondent (“the Delegate”), dated 16 March 2018, refusing the applicant a Safe Haven Enterprise Visa.
Under the heading “Grounds of Application” in the initiating application, the applicant stated as follows:
“Ground 1 - I believe the decision is affected with legal error
Particulars
1. More details will be provided once court book is prepared.”
On…

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: [2019] FCCA 963
Decision Date: 9 April 2019

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Emmett J, considered the application of FBR18 for a protection visa. FBR18, a national of Afghanistan, sought judicial review of the Minister for Home Affairs' decision to refuse to grant a protection visa. The Minister's decision was based on the assessment that FBR18 did not meet the criteria for a protection visa under the Migration Act 1958 (Cth).

The central legal issue before the Court was whether the Minister's delegate had erred in law by failing to consider all the relevant evidence and by making a decision that was not open to the delegate on the evidence before them. Specifically, the Court was asked to determine if the delegate had adequately assessed FBR18's claims of persecution and whether the delegate's adverse credibility findings were reasonably open on the material presented.

Emmett J reasoned that the delegate's assessment of FBR18's claims was flawed. His Honour found that the delegate had not properly engaged with significant portions of the evidence provided by FBR18, including expert reports and country information, which were crucial to substantiating the claims of a well-founded fear of persecution. The Court applied the principles of administrative law, emphasizing that a decision-maker must consider all relevant evidence and that adverse credibility findings must be supported by specific reasons that are demonstrably linked to the evidence. The delegate's failure to provide adequate reasons for discounting key evidence meant that the decision was not open to the delegate on the evidence.

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

Orders