FCS17 v Minister for Immigration - [2019] FCCA 1024

FEDERAL CIRCUIT COURT OF AUSTRALIA

FCS17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1024

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority had misconstrued or misapplied the statutory provisions – whether the Authority complied with its statutory obligations – whether the Authority had a meaningful engagement with the applicant’s claims and submissions – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 476

Applicant:

FCS17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 475 of 2017

Judgment of:

Judge Street

Hearing date:

20 March 2019

Date of Last Submission:

20 March 2019

Delivered at:

Adelaide

Delivered on:

20 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr P Barnes

Solicitors for the Applicant:

Beena Rezaee Legal & Migration

Solicitors for the Respondents:

Ms S Nyabally
Australian Government Solicitor

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7467).

DATE OF ORDER: 20 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 475 of 2017

FCS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 20 October 2017 affirming the decision of the delegate not to grant the applicant a Temporary Protection visa.
The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 21 February 2013. The applicant was found to be a Shia Hazara. The applicant claims that in 2012 Pashtun Kuchis attacked his village. The applicant claimed that his son was killed in 2014 from an attack from Pashtun Kuchis. The applicant fears harm by the Pashtun Kuchis linked to the Taliban, and the Taliban themselves and other Sunni insurgent groups, and due to his Hazara Shia race and religion and because he would be returning as a failed asylum seeker from the west.
On 13 January 2017, the delegate found the applicant failed to meet the criteria for the grant of a Temporary Protection visa.
On 18 January 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions and new information which were referred to in the Authority’s reasons and considered in accordance with the requirements of s 473DD of the Act insofar as concerning the information.
On 7 June 2017,…

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 1024
Decision Date: 20 March 2019

CaseChat Overview and Summary

The applicant, FCS17, sought judicial review of a decision by the Immigration Assessment Authority (IAA) concerning their application for a Temporary Protection visa. The core of the dispute revolved around whether the IAA had correctly interpreted and applied the relevant legislative provisions governing such applications and whether it had fulfilled its statutory obligations in considering FCS17's claims and submissions.

The primary legal issues before the court were whether the IAA had engaged meaningfully with the applicant's case, whether it had misconstrued or misapplied the statutory provisions under which the visa application was assessed, and consequently, whether any jurisdictional error had occurred.

Judge Street found that the IAA had not made a jurisdictional error. The court was satisfied that the IAA had undertaken a proper consideration of the applicant's claims and submissions, demonstrating a meaningful engagement with the material before it. The Authority's decision was found to be consistent with its statutory obligations.

Accordingly, the amended application for judicial review was dismissed.

Orders