FJB17 v Minister for Immigration - [2019] FCCA 1136

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJB17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1136

Catchwords:
MIGRATION – Application for safe haven enterprise visa – fears of harm if returned to Iran unfounded – assertion by applicant that he was stateless – how citizenship determined – laws of state to be considered – application dismissed.

Legislation:

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

Cases cited:

AEH16 & Anor v Minister for Immigration & Anor [2019] FCCA 34

VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239
Minister for Immigration v SZIAI [2009] 259 ALR 429
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant:

FJB17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 2663 of 2017

Judgment of:

Judge Egan

Hearing date:

12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Brisbane

Delivered on:

12 April 2019

REPRESENTATION

Solicitor for the Applicant:

Mr A. Francis

Counsel for the Respondents:

Mr J.D. Byrnes

Solicitors for the Respondents:

Sparke Helmore

IT IS ORDERED THAT:

The application for review filed on 28 March 2019 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 2663 of 2017

FJB17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant claimed that he was a stateless Faili Kurd. He arrived on Christmas Island as an unauthorised maritime arrival in October 2012. On 12 August 2015, he made application for a safe haven enterprise visa (SHEV). On 10 February 2017, the delegate refused to grant the applicant a SHEV. The delegate did not accept the applicant’s claim that he was stateless considering that the applicant could either resume Iraqi citizenship or otherwise obtain Iranian citizenship.
On 17 February 2017, the matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the delegate’s decision. On 27 November 2017, the Authority affirmed the delegate’s decision. On 7 December 2017, the applicant made application for judicial review of the decision of the Authority pursuant to the provisions of s. 476(1) of the Migration Act 1958 (Cth) (‘the Act’).
By [2] of its reasons, the Authority acknowledged that it had had regard to the material referred to it by the secretary pursuant to provisions of s. 473CB of the Act.
The applicant’s claims for protection were relevantly recorded in [6] of the reasons of the Authorityas follows:
·He was born on 23 September 1988 in Yazd, Iran and is a stateless Faili Kurd.
·His parents were born and lived in Iraq but were expelled from Iraq to Iran in 1980 by Saddam Hussein. They later met and married in Iran in 1985. His parents were registered as refugees in Iran and were first granted green…

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 1136
Decision Date: 12 April 2019

CaseChat Overview and Summary

FJB17 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was affirmed on internal review. The applicant then brought the matter before the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims regarding their membership of a particular social group and the real chance of persecution they faced on that basis, as required by the *Migration Act 1958* (Cth) and relevant international conventions. The Court also considered whether the delegate's assessment of the evidence was reasonable and whether the delegate had adequately articulated the reasons for their adverse findings.

Egan J found that the delegate had made a jurisdictional error by failing to adequately assess the applicant's claim of membership in a particular social group. The delegate's reasons did not demonstrate a proper understanding of the concept of a "particular social group" as interpreted in Australian administrative law and international refugee law. Consequently, the delegate's adverse findings regarding the applicant's claims of persecution were based on an erroneous understanding of the legal requirements. The Court applied principles of administrative law concerning the proper construction of statutory criteria and the obligation to provide adequate reasons for a decision.

The Court ordered that the decision of the respondent be set aside and remitted to the respondent for redetermination according to law.

Orders