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FKZ17 v Minister for Immigration

FKZ17 v Minister for Immigration

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Case Copied 20 September 2019 100 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FKZ17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2521

Catchwords:
MIGRATION – No consideration by IAA of country information provided by an expert on behalf of the Applicant – independent country information directly contradicted country information provided by the Department of Foreign Affairs and Trade – relief sought by Applicant granted.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2) & (2A), 473CB, 473CC, 473DC, 473DD, 473DE.

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388

Baker v The Queen (2004) 223 CLR 513

BMV16 v Minister for Home Affairs (2018) 261 FCR 476

BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221

BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44

CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148

CVS16 v Minister for Immigration and Border Protection [2018] FCA 951

Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581

MZACX v Minister for Immigration and Border Protection [2016] FCA 1212

MZYQU v Minister for Immigration and Border Protection (2012) 206 FCR 191

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111

Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481; (2018) 353 ALR 600
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18

Applicant:

FKZ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

CAG 101 of 2017

Judgment of:

Judge Neville

Hearing date:

13 July 2018

Date of Last Submissions:

26 July 2019

Delivered at:

Canberra

Delivered on:

20 September 2019

REPRESENTATION

Solicitors for the Applicant:

Kikkert Law

Counsel for the Respondents:

Mr Hoyle

Solicitors for the Respondents:

Clayton Utz Canberra

ORDERS

The decision and recommendation of the Immigration Assessment Authority dated 22^nd November 2017 be set aside, and the matter be remitted for further assessment by a different reviewer.
The First Respondent is to pay the Applicant’s costs of these proceedings in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 101 of 2017

FKZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is an Afghani national of Hazara ethnicity and Shia religion. On 2^nd May 2016, he lodged an Application for a Safe Haven Enterprise Visa (“SHEV”). He claimed to fear harm from the Taliban due to his religion and his ethnicity, as a returnee, and as a failed asylum seeker from a western country.[1]
[1] The following brief factual summary is taken from the reasons of the Immigration Assessment Authority, dated 22^nd November 2017.…

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 2521
Decision Date: 20 September 2019

CaseChat Overview and Summary

The applicant, FKZ17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's assessment of country information relevant to the applicant's case, specifically in relation to information provided by an expert on behalf of the applicant which directly contradicted information provided by the Department of Foreign Affairs and Trade. The matter was heard by Judge Neville.

The central legal issue before the court was whether the Immigration Assessment Authority (IAA) had adequately considered the expert country information provided by the applicant. This involved determining if the IAA had failed to give proper weight or consideration to evidence that was in direct conflict with the Department's information, and if such failure vitiated the decision-making process.

Judge Neville found that the IAA had failed to properly consider the expert country information provided by the applicant. The court reasoned that where expert evidence is presented, particularly when it directly contradicts information relied upon by the Department, the decision-maker has a duty to engage with that expert evidence and explain why it is not being preferred. The failure to do so meant that the applicant's case had not been properly assessed. The relief sought by the applicant was granted.

Orders