FKQ17 v Minister for Immigration - [2018] FCCA 1281

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKQ17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1281

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the Authority failed to consider a claim advanced by the applicants – whether the Authority failed to consider the applicants written submissions – whether the Authority’s reasons for not considering the applicants submissions was affected with legal error – jurisdictional error made out – amended application allowed.

Legislation:
Migration Act 1958 (Cth), s.476

First Applicant:

FKQ17

Second Applicant: AGP18

Third Applicant: AGQ18

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3843 of 2017

Judgment of:

Judge Street

Hearing date:

21 May 2018

Date of Last Submission:

21 May 2018

Delivered at:

Sydney

Delivered on:

21 May 2018

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu
Hodges Legal

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

MinterEllison

ORDERS

Grant leave to the applicant to rely upon the amended application filed on 4 May 2018.
A writ in the nature of certiorari is issued calling up on the record of the Immigration Assessment Authority and quashing the decision made on 30 November 2017.
A writ in the nature of mandamus is issued requiring the Immigration Assessment Authority to conduct the review of the application for a Safe Haven Enterprise visa according the law.
The first respondent pay the applicant’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3843 of 2017

FKQ17

First Applicant

AGP18

Second Applicant

AGQ18

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

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 30 November 2017 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.
The applicants were found to be Tamil Hindus from Sri Lanka and their claims were assessed against that country. The primary and secondary applicants resided mainly in Colombo and Jaffna in the Northern Province and departed Sri Lanka legally on 10 April 2013 and travelled to Malaysia. They arrived in Christmas Island on 1 May 2013 and the third applicant was born in Australia on 9 February 2014. On 3 November 2016, the applicants lodged a combined application for Safe Haven Enterprise visas. On 8 May 2017, the delegate refused to grant the protection visas.

The Authority

On 10 May 2017, the Authority wrote to the applicants explaining that the application for Safe Haven Enterprise visas had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicants…

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 1281
Decision Date: 21 May 2018

CaseChat Overview and Summary

The applicant, FKQ17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved an examination of whether the delegate who made the original decision had properly considered all the relevant evidence and applied the correct legal principles in assessing the applicant's claims for protection.

Judge Street reasoned that the delegate had failed to adequately assess the applicant's claims regarding past persecution and the risk of future persecution in their country of origin. The Court found that the delegate had not properly engaged with the specific details of the applicant's evidence, leading to a conclusion that the decision was not open to the delegate on the evidence before them. This failure constituted a jurisdictional error, as the delegate had not exercised their power according to law.

Consequently, Judge Street quashed the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders