FZH18 v Minister for Home Affairs - [2020] FCCA 738

FEDERAL CIRCUIT COURT OF AUSTRALIA

FZH18 v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 738

Catchwords:
MIGRATION – Safe Haven Enterprise Visa – Decision of the Immigration Assessment Authority – Whether the IAA erred in assessing the applicant’s evidence – where the applicant was a minor at the time of the entry interview – whether the IAA was required to address applicant’s age – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.67, 68

Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 65, 414, 415, 473CA, 473DA, 473DC, 473DD, 473GA, 473GB, 476

Cases cited:

ABJ19 as Representative of ABI19 v Minister for Home Affairs [2020] FCA 136
Craig v State of South Australia (1995) 184 CLR 163
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
DTH17 v Minister for Immigration & Anor [2018] FCCA 729
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Citizenship v SZRKT (2013) 302 ALR 572
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 29
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant:

FZH18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 618 of 2018

Judgment of:

Judge Kendall

Hearing dates:

24 and 25 March 2020

Dates of Last Submission:

24 and 25 March 2020

Delivered at:

Perth

Delivered on:

3 April 2020

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms A Ladhams

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 618 of 2018

FZH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 19 October 2018.
The IAA affirmed a decision of the first respondent (the “Minister”) to refuse the applicant a Safe Haven Enterprise Visa (the “visa”).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
The Court had before it:
a)the applicant’s application for judicial review dated 19 November 2018;
b)correspondence between the Court, the applicant and Counsel for the Minister concerning a request for an adjournment (marked as Exhibit 1);
c)a Court Book (“CB”) numbering 307 pages (marked as Exhibit 2);
d)Ministerial Direction 56 (marked as Exhibit 3);
e)Annexure 1 of the PAM3 Guidelines (marked as Exhibit 4);
f)correspondence confirming service of the Minister’s submissions,…

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: [2020] FCCA 738
Decision Date: 3 April 2020

CaseChat Overview and Summary

The applicant, FZH18, sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their application for a Safe Haven Enterprise Visa. The core of the dispute revolved around the IAA's assessment of the evidence provided by the applicant, particularly in light of the applicant being a minor at the time of their entry interview. The matter was heard in the Federal Circuit and Family Court of Australia before Judge Kendall.

The primary legal issue before the Court was whether the IAA had committed a jurisdictional error in its assessment of the applicant's evidence. Specifically, the Court was required to determine if the IAA was obligated to address the applicant's age during its assessment process, and if its failure to do so constituted a reviewable error.

Judge Kendall found that the IAA's decision did not involve jurisdictional error. The Court reasoned that the IAA's mandate was to assess the evidence before it in accordance with the relevant legislative framework. While the applicant's age was a factor that could be considered in the assessment of evidence, the IAA was not under a specific legal obligation to explicitly address the applicant's age in its reasons for decision. The Court concluded that the IAA had undertaken its assessment and that no jurisdictional error had occurred.

Consequently, the application for judicial review was dismissed.

Orders