FIG17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

FIG17 v Minister for Home Affairs [2019] FCA 1105

Appeal from: FIG17 v Minister for Immigration and Border Protection [2018] FCCA 3751
File number: WAD 621 of 2018
Judge: JACKSON J
Date of judgment: 19 July 2019
Catchwords: MIGRATION - appeal from Federal Circuit Court of Australia - application for judicial review - decision of Immigration Assessment Authority - protection visa - irrationality - new information under s 473DD of the Migration Act 1958 (Cth) - failure to consider integer of claim - appeal dismissed
Legislation:

Acts Interpretation Act 1901 (Cth) s 15AB(1)(a)

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(a), 36(2)(aa), 65, 473CC, 473DB, 473DC, 473DD, 473EA, 476, Part 7AA Div 3

Migration Regulations 1994 (Cth) r 4.43

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

BVD17 v Minister For Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2017) 257 FCR 148

CNN16 v Minister for Immigration and Border Protection [2018] FCA 1526

Dranichikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

ETA067 v Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228

FJW17 v Minister for Home Affairs [2019] FCA 881

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136

Maan v Minister for Immigration and Citizenship [2009] FCAFC 150; (2009) 179 FCR 581

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111

Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166; (2018) 261 FCR 461

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

MZZGE v Minister for Home Affairs [2019] FCAFC 72

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600

R v Kelly [2000] QB 198

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

Date of hearing: 6 May 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
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Details
Case
[2019] FCA 1105
Decision Date

CaseChat Overview and Summary

In the case of FIG17 v Minister for Home Affairs, the appellant sought judicial review of a decision made by the Immigration Assessment Authority regarding his application for a protection visa. The Federal Circuit Court dismissed the appeal, with the primary judge providing ex tempore reasons on 6 December 2018. The appellant argued that the Authority's decision was irrational as it was not satisfied that he would be viewed as an apostate despite being an atheist and no longer practising Islam. The appellant contended that this decision was affected by jurisdictional error.

The court examined the principles concerning irrationality as a ground for judicial review. The appellant claimed that the Authority fell into the third category of error, which involves an irrational or illogical step in reasoning that affects a material conclusion. However, the court found that there was no logical contradiction in the Authority's decision. The Authority's decision indicated that while the appellant was an atheist, there was no evidence to suggest that he would be viewed as an apostate or face harm in Iran based on the country information provided. The court concluded that the Authority's decision was logical and rational based on the evidence and information presented.

The Federal Circuit Court dismissed the appeal and ordered that the appellant must pay the first respondent's costs, to be assessed if not agreed. The costs order is in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant must pay the first respondent's costs, to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Federal Circuit Court dismissed the application for judicial review on 6 December 2018, with the primary judge delivering ex tempore reasons.Ground 1 - irrationality The first ground of appeal and ground of review alleges that a finding that the Authority reached, namely, that it was not satisfied that the appellant 'would be viewed as an apostate' was irreconcilable with an earlier finding that he was an atheist and no longer practised Islam. The appellant claims that this is affected by jurisdictional error because it was irrational. In MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] the Full Court summarised the principles concerning irrationality as a ground of judicial review as follows:A decision might be shown to be affected by jurisdictional error if:(1)no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);(2)there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);(3)there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132]. It appears here that the appellant claims that the Authority fell into the third category of error summarised by the Full Court. The error is said to have occurred in paragraph 52 of the Authority's decision, which reads as follows:I accept that that [sic] applicant may no longer practise Islam on his return to Iran and is an atheist. On country information referred to above I am not satisfied that he would be viewed as an apostate or that his non observance of Islamic practices will give rise to a real risk of harm on his return. In my view there is no logical contradiction between the first and the second sentences of this paragraph. The second sentence does not say that the appellant would not be an apostate, it says that he would not be viewed as one. A fair reading of that in the context of the rest of the paragraph and the reasons as a whole is that it is saying that despite his atheism, the appellant would not be of sufficient interest to the authorities to lead to persecution or harm. That is confirmed by the reference to the country information that the Authority had already summarised, which was to the effect that atheists who do not express their views in public are able to lead normal lives in Iran without facing any further restrictions. In the context of referring to that information, the Authority said that while it was satisfied that the appellant was an atheist, based on the country information it was not satisfied that he would be persecuted on his return to Iran. Other country information referred to was to the effect that political opponents of the Iranian regime could be charged with apostasy. But the Authority found that the appellant was not a political opponent of the regime. The Authority also referred to a DFAT report which indicated that it was unlikely that individuals would be prosecuted on charges of apostasy, that perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their beliefs or attempts at proselytisation, and that atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views. In that context, the Authority recorded that it was not satisfied that the appellant would publicise his views if he returned to Iran and was not satisfied that he faced a real chance of harm arising from his lack of religious beliefs.