FUR18 v Minister for Immigration - [2020] FCCA 1796

FEDERAL CIRCUIT COURT OF AUSTRALIA

FUR18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1796

Catchwords:
MIGRATION – Visa – protection visa – judicial review of application for a Safe Haven Enterprise visa – unauthorised maritime arrival – applicant fears harm in Afghanistan due to identification as trans-amorous queer member of LGBTIQ community – unduly narrow construction of ‘exceptional circumstances’ in section 473DD(a) of the Migration Act 1958 – failure to consider new information – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 473DD, 476(1)

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958

Craig v State of South Australia (1995) 184 CLR 163

DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901

DYK17 v Minister for Home Affairs [2019] FCA 943
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 521
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1
SZVVE v Minister for Immigration and Border Protection [2015] FCA 837

Applicant:

FUR18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 583 of 2018

Judgment of:

Judge McNab

Hearing date:

31 March 2020

Date of Last Submission:

31 March 2020

Delivered at:

Melbourne

Delivered on:

3 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr Jahnke

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondents:

Mr Knowles of Counsel

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed on 7 November 2018 be allowed.
The decision of the Immigration Assessment Authority dated 4 October 2018 be quashed.
A writ of mandamus issue requiring the Immigration Assessment Authority to determine the applicant’s application according to law.
The first respondent pay the costs of the applicant fixed in the sum of $7,467.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 583 of 2018

FUR18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an application dated 7 November 2018 the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’ or ‘the IAA’) made on 4 October 2018. The Authority’s decision affirmed a decision of a delegate (‘Delegate’) of the first respondent (‘the Minister’) refusing to grant a Safe Haven Enterprise (subclass 790) visa (‘SHEV visa’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’).
The matter was heard on 31 March 2020.
For the reasons which follow I have concluded that the application should be allowed.

Background

The applicant is a…

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.

Keep reading for free

Create a free CaseChat account to read FUR18 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 1796
Decision Date: 3 July 2020

CaseChat Overview and Summary

The applicant, FUR18, sought judicial review of the Minister for Immigration's decision to refuse their application for a Safe Haven Enterprise visa. FUR18, an unauthorised maritime arrival, claimed to fear harm in Afghanistan due to their identification as a trans-amorous queer member of the LGBTIQ community. The core of the dispute concerned the interpretation and application of the "exceptional circumstances" threshold under section 473DD(a) of the *Migration Act 1958* (Cth) and whether the decision-maker adequately considered new information provided by the applicant. The matter was heard by Judge McNab in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the delegate of the Minister had applied an unduly narrow construction to the phrase "exceptional circumstances" in section 473DD(a) of the *Migration Act*. Furthermore, the court had to consider whether the delegate failed to properly consider new information that had been provided by the applicant regarding their fears of harm in Afghanistan.

Judge McNab found that the delegate had indeed applied an unduly narrow interpretation of "exceptional circumstances," failing to give sufficient weight to the specific vulnerabilities faced by the applicant as a member of the LGBTIQ community in Afghanistan. The court reasoned that the delegate's assessment did not adequately engage with the evidence of the applicant's specific fears and the potential for harm, thereby misconstruing the scope of the exceptional circumstances provision. The failure to properly consider the new information was also a critical factor in the court's decision.

The application for judicial review was allowed.

Orders