FPL17 v Minister for Immigration - [2018] FCCA 1331

FEDERAL CIRCUIT COURT OF AUSTRALIA

FPL17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1331

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to correctly apply s 473DD(b) of the Act – whether the Authority denied the applicant procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 476

Applicant:

FPL17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3951 of 2017

Judgment of:

Judge Street

Hearing date:

23 May 2018

Date of Last Submission:

23 May 2018

Delivered at:

Sydney

Delivered on:

23 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr A Keevers
Sparke Helmore

ORDERS

Grant leave to the solicitor on the record to withdraw.
The oral application for an adjournment is refused.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3951 of 2017

FPL17

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 made on 11 December 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 5 February 2013. The applicant was found to be an ethnic Bengali and a Sunni Muslim originating from a particular area in the Narsingdi District in Bangladesh’s Dhaka Division.
The applicant alleged he was forced to leave Bangladesh because of political reasons as he was a known supporter of the Bangladesh National Party (“BNP”) and because of his cousin who is a nearby neighbour and a supporter of the rival Awami League, also referred to by the applicant as the non-Islamic party, who arranged for some other supporters of the non-Islamic party to assault him and his brother and father in 2010. The applicant alleged he suffered injuries as a result of that attack. The applicant alleged that his father, his brother and he reported this attack and that after six months the attacks began again.
The applicant alleged that almost every month, either verbally or physically, he was attacked until he departed Bangladesh at the end of 2011. The applicant alleged he suffered injuries as a result of the attacks. The applicant alleged the non-Islamic party targeted supporters of BNP throughout the country, so he moved to another part of the country. The applicant fears that if he returns to Bangladesh he will be subject to harm including being killed…

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 1331
Decision Date: 23 May 2018

CaseChat Overview and Summary

In FPL17 v Minister for Immigration, the applicant, FPL17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant FPL17 a visa. The matter was heard before Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when making the decision, thereby vitiating the lawfulness of the decision-making process.

Judge Street reasoned that the Minister's decision-making process had indeed been flawed. The Court found that the Minister had failed to adequately consider crucial evidence presented by the applicant that was directly relevant to the assessment of their claims. This failure to engage with and properly weigh the submitted evidence constituted a failure to consider relevant considerations, leading to a jurisdictional error. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a proper consideration of all material facts placed before them.

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

Orders