FIG17 v Minister for Immigration - [2018] FCCA 3751

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIG17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3751

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the reasoning of the Authority was irrational – whether the Authority erred finding what constitutes new information – whether the Authority failed to give proper and realistic consideration to an integer of the applicant’s claims – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant:

FIG17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 668 of 2017

Judgment of:

Judge Street

Hearing date:

6 December 2018

Date of Last Submission:

6 December 2018

Delivered at:

Perth

Delivered on:

6 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr A McBeth

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondents:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 6 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 668 of 2017

FIG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 23 November 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a national of Iran and his claims were assessed against that country. The applicant was found to have been born in a Muslim family but claims he had never accepted the religion and that he was an atheist and the applicant had claimed he would been harmed by reason of his atheism, apostasy and/or being a failed asylum seeker.
On 4 May 2017, the delegate found the applicant failed to meet eligibility criteria for the grant of a Safe Haven Enterprise visa.
On 5 May 2017, the Authority wrote to the applicant explaining that the application 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 submissions and new information. The applicant did put on submissions and new information dated 26 May 2017, and they were expressly referred to in the reasons of the Authority.
The submissions included content addressing four supporting statutory declarations in respect of which it was submitted that they should be considered to be new information under s 473DD of the Act. The submissions also referred to the applicant being a member of a particular social group of persons being failed asylum seekers. It was advanced that, as a failed asylum seeker, the applicant…

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: [2018] FCCA 3751
Decision Date: 6 December 2018

CaseChat Overview and Summary

FIG17 (the applicant) sought judicial review of a decision by the Immigration Assessment Authority (the Authority) to refuse an application for a Safe Haven Enterprise visa. The applicant contended that the Authority's reasoning was irrational, that it erred in its assessment of what constituted "new information" for the purposes of the application, and that it failed to give proper and realistic consideration to certain aspects of the applicant's claims.

The primary legal issues before the Court were whether the Authority's decision-making process involved jurisdictional error. This required the Court to consider whether the Authority's findings regarding the applicant's claims were irrational, whether its interpretation and application of the "new information" provisions were legally sound, and whether it adequately considered all relevant aspects of the applicant's case as presented.

Justice Street found that the Authority's reasoning was not irrational and that it had correctly identified and applied the relevant legal principles concerning what constituted new information. The Court was satisfied that the Authority had given proper and realistic consideration to the applicant's claims. Consequently, no jurisdictional error was established.

The amended application was dismissed.

Orders