Fui18 v Minister for Home Affairs - [2019] FCCA 1682

FEDERAL CIRCUIT COURT OF AUSTRALIA

FUI18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1682

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Mali – applicant’s claims of past harm not believed and fear of future harm found not to be well-founded – whether the Authority erred in considering reports of terrorist activity considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5H, 46A, 473DD

Cases cited:

BUD17 v Minister for Home Affairs [2018] FCAFC 140

Hossain v Minister for Immigration (2018) 92 ALJR 780

Minister for Immigration v MZYTS (2013) 230 FCR 431

Minister for Immigration v SZMTA (2019) 93 ALJR 252

Minister for Immigration v SZRKT [2013] HCATrans 251

Minister for Immigration v SZRKT (2013) 212 FCR 99

Minister for Immigration v SZSRS (2014) 309 ALR 67

Applicant:

FUI18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3099 of 2018

Judgment of:

Judge Driver

Hearing date:

18 June 2019

Delivered at:

Sydney

Delivered on:

15 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr J King

Solicitors for the Applicant:

Varess

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Minter Ellison

ORDERS

A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 25 June 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3099 of 2018

FUI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 25 June 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a 38 year old male and a citizen of Mali who arrived in Australia at Christmas Island on 24 May 2013 as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 3, 9, 45, 52
The applicant was born in Timbuktu in 1981 and lived in the capital of Mali, Bamako, from 2008 to 2013 before fleeing to Australia.[2]
[2] CB 58
In June 2016, the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow the applicant to make a valid application for the protection visa.[3]
[3] CB 18
On 13 July 2017, the applicant lodged the application for the protection visa[4] and claimed to fear harm in Mali because of:[5]
a)his religion - he is a moderate Sunni Muslim who does not subscribe to fundamentalist religious beliefs of the Islamist militias fighting in Mali;
b)his membership of a particular social group - being a member of 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: [2019] FCCA 1682
Decision Date: 15 August 2019

CaseChat Overview and Summary

The applicant, Fui18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse their application for a protection visa. Fui18 claimed to fear harm in Mali. The IAA had not accepted Fui18's claims of past harm and found their fear of future harm to be not well-founded. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the IAA had committed a jurisdictional error in its assessment of Fui18's protection visa application. Specifically, the Court was required to determine if the IAA erred in its consideration of reports detailing terrorist activity relevant to Fui18's claims.

Judge Driver found that the IAA had indeed made a jurisdictional error. The Court reasoned that the IAA's approach to the evidence concerning terrorist activity was flawed, leading to an incorrect assessment of Fui18's claims. The Authority's failure to properly engage with this material constituted a failure to exercise its jurisdiction according to law.

The Court ordered that the decision of the Immigration Assessment Authority be set aside.

Orders