GAU18 v Minister for Home Affairs - [2019] FCCA 1603

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAU18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1603

Catchwords:
MIGRATION – Application for safe haven enterprise visa – country information – authority entitled to rely upon that information which it chooses to rely upon after having considered all of the claims before it and after having assessed relevant information – fears of applicant unfounded – application dismissed.

Legislation

Migration Act 1958 (Cth), ss.473CA, 473CB

Cases cited:

BZD17 v Minister for Immigration & Border Protection (2018) 161 ALD 441.

Tickner v Chapman (1995) 57 FCR 451.

Minister for Immigration v MZYTS (2013) 230 FCR 431.

SZOVB v Minister for Immigration (2011) 125 ALD 38.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant:

GAU18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 1213 of 2018

Judgment of:

Judge Egan

Hearing date:

28 May 2019

Date of Last Submission:

28 May 2019

Delivered at:

Brisbane

Delivered on:

12 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Fisher Dore Lawyers

Counsel for the Respondents:

Ms A. Wheatley

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application for review filed on 21 November 2018 be dismissed.
The Applicant pay the Respondents costs of and incidental the application fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1213 of 2018

GAU18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant was born in Jaffna, Sri Lanka, and is of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival at Cocos (Keeling) Islands in September 2012.
The applicant made an application for a Safe Haven Enterprise Visa (SHEV) on 2 March 2016.
A delegate of the Minister refused the application for the SHEV on 24 October 2016. The matter was then referred to the Immigration Assessment Authority (‘the Authority’) for review pursuant to the provisions of s 473CA of the Migration Act 1958 (Cth)(‘the Act’) on 31 October 2016.
On 14 June 2017, the Authority affirmed the delegate’s decision not to grant the applicant the SHEV.
On 3 August 2018, the Federal Circuit Court quashed the Authority’s decision.
On 26 October 2018, the Authority reviewed the delegate’s decision pursuant to the orders of the Federal Circuit Court and again affirmed the decision of the delegate.
On 21 November 2018, the applicant filed an application for review of the Authority’s second decision pursuant to the provisions of the Act.
At [2] of its reasons, the Authority confirmed that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s 473CB of the Act.
The applicant’s claims…

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 1603
Decision Date: 12 June 2019

CaseChat Overview and Summary

The applicant, GAU18, sought judicial review of a decision by the Minister for Home Affairs to refuse their application for a Safe Haven Enterprise Visa. The dispute centred on the Minister's assessment of the applicant's claims for protection and the country information relied upon in reaching the decision. The matter was heard by Judge Egan in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the Minister had properly considered the applicant's claims and the available country information when assessing the application for the visa. Specifically, the court was required to determine if the Minister was entitled to rely on certain country information after having considered all the claims made by the applicant and assessing the relevant information.

Judge Egan reasoned that the Minister is entitled to choose which country information to rely upon, provided that all the applicant's claims have been considered and relevant information has been assessed. The court found that the Minister had indeed undertaken this process and concluded that the fears expressed by the applicant were unfounded. Consequently, the application for the Safe Haven Enterprise Visa was dismissed.

Orders