FJE17 v Minister for Immigration - [2018] FCCA 3410

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJE17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3410

Catchwords:
MIGRATION – Application for judicial review – safe haven enterprise visa – failure to provide evidence of identity – stateless person – whether the Authority failed to consider new information.

Legislation:

Migration Act 1958 (Cth), ss.7AA, 91W, 473

Cases cited:

Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337

Applicant:

FJE17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 502 of 2017

Judgment of:

Judge Young

Hearing date:

23 October 2018

Date of Last Submission:

23 October 2018

Delivered at:

Darwin

Delivered on:

23 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Barnes of Counsel

Solicitors for the Applicant:

Sparke Helmore

Counsel for the First Respondent:

Ms Graycar of Counsel

Solicitors for the First Respondent:

Camatta Lempens Pty Ltd

ORDERS

That the application filed 7 December 2017 be dismissed.
That the applicant is to pay the Respondent’s costs in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 502 of 2017

FJE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 21 November 2017 that the applicant was ineligible for a safe haven enterprise visa because section 91W of the Migration Act applied to him in that he had failed to provide without reasonable explanation documentary evidence of his identity, nationality or citizenship.
The applicant is a Faili Kurd. He arrived in Australia in 2013 along with his brother who I will describe with the initial B. The applicant said that he was a stateless person and although resident and born in Iran he was not entitled to Iranian citizenship.
He said that as a Faili Kurd his family had originated in Iraq and crossed to Iran during the Iran-Iraq War. He said that as a result of his lack of citizenship in Iran he was subject to discrimination and persecution in Iran. He said his family and siblings, with the exception of his brother B and a sister, were also stateless and without Iranian citizenship.
The applicant’s brother B said that he was a citizen of Iran. The circumstances in which B had obtained his citizenship were the subject of some consideration during the process of the applicant’s application for a visa. He, that is B, had at one point produced a citizenship certificate which appeared to indicate that his parents, the same parents…

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 3410
Decision Date: 23 October 2018

CaseChat Overview and Summary

In FJE17 v Minister for Immigration, Judge Young of the Federal Circuit Court of Australia considered an application for judicial review concerning a decision made by the Minister for Immigration. The applicant, FJE17, sought to challenge the lawfulness of the Minister's decision, which had significant implications for their immigration status.

The central legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when making the decision, thereby vitiating the lawfulness of the process.

Judge Young's reasoning focused on the principles of administrative law governing the exercise of ministerial power. The Court examined the evidence presented to ascertain whether the Minister had properly discharged their statutory obligations and whether the decision-making process had been fair and lawful. The Court applied the established legal tests for jurisdictional error, scrutinising the material before the Minister and the reasons provided for the decision to ensure compliance with the relevant legislative framework and the principles of natural justice.

The Court found that the Minister's decision was affected by jurisdictional error. Consequently, Judge Young quashed the decision and remitted the matter to the Minister for reconsideration according to law.

Orders