FMF17 v Minister for Immigration - [2018] FCCA 1300

FEDERAL CIRCUIT COURT OF AUSTRALIA

FMF17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1300

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider the applicant’s evidence – whether the Authority erred in applying s 5 of the Act – whether the Authority failed to consider whether it was safe for the applicant to return to his home country – no arguable case of jurisdictional error made out – application dismissed under r.44.12 of the Rules.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CB, 473DE, 476

Applicant:

FMF17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3888 of 2017

Judgment of:

Judge Street

Hearing date:

22 May 2018

Date of Last Submission:

22 May 2018

Delivered at:

Sydney

Delivered on:

22 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms C Saunders
DLA Piper

ORDERS

The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3888 of 2017

FMF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant, who is a Shia Muslim and a Bidoon, was found by the Authority to be a citizen of Iraq and his claims were assessed against that country. The applicant claimed that he is a Stateless Bidoon from Kuwait and that he will be discriminated against and unable to find employment if returned to Iraq.
The applicant arrived in Australia on 24 March 2013 as an unauthorised maritime arrival. On 15 June 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

On 20 June 2017, the Authority wrote to the applicant explaining that the application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter explained there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions that were considered by the Authority. The first were submissions dated 30 July 2017, to which the Authority referred and was satisfied that that addressed the delegate’s reasons and had regard to the same. The Authority also referred a 10 page post-interview submission dated 22 May 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: [2018] FCCA 1300
Decision Date: 22 May 2018

CaseChat Overview and Summary

The applicant, FMF17, 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 was heard before Judge Street of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider relevant information or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

Judge Street found that the delegate had failed to adequately consider crucial evidence presented by the applicant regarding their fear of persecution. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant material before them. The failure to do so constituted a jurisdictional error, rendering the Minister's decision invalid.

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

Orders