FWR18 v Minister for Home Affairs - [2019] FCCA 3448

FEDERAL CIRCUIT COURT OF AUSTRALIA

FWR18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3448

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Application in a Case for reinstatement – application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Home Affairs to refuse to grant to the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa – applicant contends he was not able to attend final hearing date because he was “not aware of that day” – evidence on the Court file and of the Minister indicates the applicant was properly informed of final hearing date – applicant raises proposed substantive Grounds that Immigration Assessment Authority failed to apply the correct test pursuant s.36(2)(aa) of the Migration Act 1958 (Cth) and that he was not afforded procedural fairness – Immigration Assessment Authority can rely on anterior factual findings in relation to an assessment under the Refugees Convention criterion in its consideration of the complementary protection criterion – not necessary for Immigration Assessment Authority to repeat factual findings under the complementary protection criterion – correct tests applied by the Immigration Assessment Authority – no procedural unfairness established by the applicant – Application in a Case for reinstatement dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

AEX15 v Minister for Immigration and Border Protection [2017] FCA 821

AWA15 v Minister for Immigration [2018] FCA 604

Applicant:

FWR18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3151 of 2018

Judgment of:

Judge Dowdy

Hearing date:

15 November 2019

Delivered at:

Sydney

Delivered on:

15 November 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms K. Morris

Solicitors for the First Respondent:

Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application in a Case filed on 5 November 2019 is dismissed.
The Applicant pay the First Respondent’s costs of the Application in a Case in the sum of $1,000.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth) 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 3448
Decision Date: 15 November 2019

CaseChat Overview and Summary

The applicant, FWR18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) which affirmed the Minister for Home Affairs' refusal to grant a Safe Haven Enterprise (Class XE) (Subclass 790) visa. The applicant's primary contention was that he was unable to attend the final hearing before the IAA because he was not aware of the scheduled date.

The court was required to determine whether the applicant had been properly informed of the final hearing date, and consequently, whether the IAA's decision was vitiated by a failure to afford procedural fairness. Further, the court considered whether the IAA had correctly applied the relevant tests under section 36(2)(aa) of the *Migration Act 1958* (Cth) in assessing the applicant's eligibility for a protection visa, particularly in relation to the complementary protection criterion.

Justice Dowdy found that the evidence before the court and the Minister indicated the applicant had been duly notified of the final hearing date. The court also held that the IAA was entitled to rely on its anterior factual findings made in relation to the Refugees Convention criterion when considering the complementary protection criterion, and was not required to repeat those findings. The court concluded that the IAA had applied the correct legal tests and that the applicant had not established any denial of procedural fairness.

The Application in a Case for reinstatement was accordingly dismissed.

Orders