FLS18 v Immigration Assessment Authority - [2021] FCCA 252

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLS18 v IMMIGRATION ASSESSMENT AUTHORITY & ANOR [2021] FCCA 252

Catchwords:
MIGRATION – Safe Haven Enterprise Visa – whether arrival interview (recording and transcript) was “before” the Delegate at time of decision – contentions of inaccurate recording in IAA’s reasons of what was in the transcript of the Applicant’s arrival interview – failure by Minister to adduce evidence from Delegate of what was actually before the Delegate at time of decision – general evidence from Departmental officer – inferences drawn against the IAA and Minister in accordance with principle in Blatch v Archer – failure by IAA properly to discharge its statutory task – relief granted.

Legislation:

Evidence Act 1995 (Cth), s.55(2)

Migration Act 1958 (Cth), Part 7AA, ss.46A, 473DC, 473DD, 473DE.

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510
ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928; (2020) 383 ALR 407; [2020] HCA 34

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

Attorney-General (NSW) v Quin (1990) 170 CLR 1
AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007; [2020] HCA 37

Australian Securities and Investments Commission v Rich (2009) 236 FLR 1

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345
BDR18 v Minister for Home Affairs [2020] FCA 212

Blatch v Archer (1774) 1 Cowp 63; 98 ER 969

Coshott v Prentice (2014) 221 FCR 450

CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 61

CVV16 v Minister for Home Affairs [2019] FCA 1890

DPI17 v Minister for Home Affairs (2019) 269 FCR 134

DPT17 v Minister for Home Affairs (2019) 166 ALD 208; [2019] FCA 872

DTK17 v Minister for Immigration and Border Protection (2018) 265 FCR 538

EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299

Jones v Dunkel (1959) 101 CLR 298

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Applicant: FLS18

First Respondent: IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent: MINISTER FOR HOME AFFAIRS

File Number: CAG 77 of 2018

Judgment of: Judge WJ Neville

Hearing date: 11 October 2019

Date of Last Submission: 3 November 2020

Delivered at: Canberra

Delivered on: 16 February 2021
REPRESENTATION

Counsel for the Applicant: Mr M Guo

Solicitors for the Applicant: Welcome Legal

Counsel for the First Respondent: Mr B D Kaplan

Solicitors for the First Respondent: Clayton Utz
ORDERS
(1)The Review Application be allowed.
(2)A writ of certiorari issue, quashing the decision of the First Respondent (Authority) dated 14 September 2018 to affirm the decision of a delegate of the Second Respondent (Minister) to refuse to grant the…

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: [2021] FCCA 252
Decision Date: 16 February 2021

CaseChat Overview and Summary

The Federal Circuit Court considered a review application concerning a Safe Haven Enterprise Visa. The applicant, FLS18, challenged the Immigration Assessment Authority's (IAA) decision to affirm the Minister's refusal to grant a protection visa. The core of the dispute revolved around whether an arrival interview, and its recording and transcript, were properly before the delegate at the time of the initial decision, and whether the IAA had accurately represented the content of that transcript in its own reasons.

The court was required to determine whether the IAA had failed to properly discharge its statutory task. Specifically, the court had to consider the applicant's contentions that the IAA's reasons inaccurately recorded what was contained within the transcript of the applicant's arrival interview. Furthermore, the court had to assess whether the Minister had adduced sufficient evidence to demonstrate what was actually before the delegate when the initial decision was made, or if general evidence from a Departmental officer was adequate.

In reaching its decision, the court applied the principle established in *Blatch v Archer*, drawing inferences against the IAA and the Minister due to the lack of specific evidence from the delegate regarding what information was before them. The court found that the IAA had not properly discharged its statutory duty, particularly in relation to its assessment of the arrival interview evidence. Consequently, the court allowed the review application, quashed the IAA's decision by writ of certiorari, and remitted the matter to the IAA for redetermination according to law by writ of mandamus. The Minister was ordered to pay the applicant's costs.

Orders

Orders of the court

ORDERS

(1) The Review Application be allowed.

(2) A writ of certiorari issue, quashing the decision of the First Respondent (Authority) dated 14 September 2018 to affirm the decision of a delegate of the Second Respondent (Minister) to refuse to grant the Applicant a protection visa.

(3) A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the Application referred to it by the Minister under s473CA of the Migration Act 1958 (Cth) for review of the delegate’s decision.

(4) The Minister pay the Applicant’s costs.

(5) The Minister pay the Applicant’s Counsel’s fees either as agreed or taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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