FCW18 v Minister for Immigration

In FCW18 v Minister for Immigration, the applicant sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their eligibility for a Safe Haven Enterprise (subclass 790) visa. The core of the dispute revolved around whether the IAA had made findings of fact without any supporting evidence, thereby committing a jurisdictional error. The matter was heard before Judge Kendall in the Federal Circuit Court of Australia.

The legal issues before the court were whether the IAA's findings, particularly concerning the risks faced by the applicant upon return to Kabul, were based on evidence. Specifically, the court was required to determine if the IAA had erred in concluding that the applicant would not face a real chance of harm due to perceived lapsed or non-observant practice of Islam, or as a returnee from a western country, within the Hazara community in Kabul.

Judge Kendall found that the IAA had made findings without evidence. The IAA's decision noted a "real chance" the applicant might be perceived as a non-observant Muslim, but then dismissed this as a basis for harm, relying on general statements about the Hazara community's favourable outlook towards western countries and migration. However, the IAA failed to adequately engage with or explain why specific evidence suggesting harm to returnees perceived as "Westernized outsiders" or lapsed in their religious practices was not determinative. The court applied the principle that findings of fact must be supported by evidence, and that a failure to do so constitutes jurisdictional error.

The court issued writs of certiorari and mandamus. Certiorari was issued to quash the IAA's decision, and mandamus was issued directing the IAA to reconsider the application according to law.