FKB17 v Minister for Immigration - [2018] FCCA 3438

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKB17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3438

Catchwords:
MIGRATION – Safe haven enterprise visa – Immigration Assessment Authority – whether or not “new information” before the assessor – declaration made under s 473GD(1) of the Act – certificate issued under s 473GB of the Act – ultra vires – declaration of invalidity made.

PRACTICE AND PROCEDURE – Whether or not court should order production of a document – relevance – admissibility – public interest – Sankey v Whitlam considered.

Legislation:

Migration Act 1958, Pt 7AA, ss 473DC, 473DD, 473DE, 473GB, 473GD, 438.

Cases Cited:

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571

BHK15 v Minister for Immigration and Border Protection [2016] FCA 569

BYM16 v Minister for Immigration and Border Protection [2017] FCA 326

CNN15 v Minister for Immigration and Border Protection [2017] FCA 579

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Edwards v Santos Limited (2011) 242 CLR 421
EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180
Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 236 CLR 146
GJ and Others (post-civil war: returnees) Sri Lanka GC [2013] UKUT 00319
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481
Plaintiff M61/2010E v Commonwealth & Ors (2010) 243 CLR 319
Sankey v Whitlam (1978) 142 CLR 1

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant:

FKB17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 689 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

3 August 2018

Date of Last Submission:

17 September 2018

Delivered at:

Melbourne

Delivered on:

27 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr M Guo

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Mr J Edwards

Solicitors for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore Lawyers

DECLARATIONS

The direction made purportedly under s 473GD(1) of the Migration Act (“Act”) and dated 21 November 2017 is invalid.
The certificate issued purportedly under s 473GB of the Act and dated 5 July 2017 is invalid.

ORDERS

The decision made by the second respondent on 21 November 2017 is quashed.
The second respondent is required to determine the applicant’s application according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 689 of 2017

FKB17

Applicant

And

MINISTER FOR IMMIGRATION &…

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 3438
Decision Date: 27 November 2018

CaseChat Overview and Summary

The applicant, FKB17, sought judicial review of a decision by the Minister for Immigration concerning a safe haven enterprise visa. The dispute centred on the validity of a declaration made under section 473GD(1) of the Migration Act 1958 (Cth) and a certificate issued under section 473GB of the Act, which the applicant argued were made *ultra vires*. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Immigration Assessment Authority (IAA) had correctly determined that certain information provided to it did not constitute "new information" for the purposes of the assessment. Allied to this was the question of whether the declaration and certificate issued by the Minister were validly made, or if they were beyond the scope of the Minister's powers. The Court also considered whether it should order the production of a specific document, assessing its relevance, admissibility, and the public interest, drawing on principles from *Sankey v Whitlam*.

His Honour Judge Wilson found that the declaration made under s 473GD(1) and the certificate issued under s 473GB were indeed *ultra vires* the powers conferred upon the Minister. The Court reasoned that the IAA's assessment of what constituted "new information" was flawed, and this error tainted the subsequent actions taken by the Minister. The principles of administrative law regarding the proper exercise of statutory powers were central to this determination.

Consequently, the Court made orders declaring the Minister's declaration and certificate invalid.

Orders