GLX18 v Minister for Home Affairs - [2020] FCCA 1882

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLX18 v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 1882

Catchwords:
MIGRATION – Review of decisions – judicial review – grounds of review – not undertaking statutory task – receiving country.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 5H(1)(a), 5J(1), 36(2), 57

Cases cited:

FJB17 v Minister for Immigration [2019] FCCA 1136
VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239

Applicant:

GLX18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 664 of 2018

Judgment of:

Judge Jarrett

Hearing date:

14 April 2020

Date of Last Submission:

14 April 2020

Delivered at:

Brisbane

Delivered on:

10 July 2020

REPRESENTATION

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the Respondents:

Ms Oliver

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue quashing the decision of the Second Respondent dated 30 November, 2018.
A writ of mandamus issue remitting the referred application the subject of this proceeding to the Second Respondent to consider and determine it according to law.
The first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 664 of 2018

GLX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

By his amended application filed on 23 September, 2019 the applicant seeks judicial review of a decision of the second respondent made on 30 November, 2018 which affirmed a decision of a delegate of the first respondent made on 25 September, 2018 not to grant the applicant a Safe Haven Enterprise (Subclass 790) visa.
The first respondent opposes the application. The second respondent has entered a submitting appearance. Both the applicant and the first respondent have filed written submissions.

Background

The applicant arrived in Australia at Christmas Island in 2013 as an unauthorised maritime arrival. He claimed that he was born in the Ghazni province of Afghanistan and that he was citizen of Afghanistan and of Hazara ethnicity. In his entry interview he claimed that he held no other citizenships. His UNHCR Asylum Seeker Certificate noted his nationality as “Afghanistan”.
At the invitation of the first respondent, on 15 May, 2017 the applicant lodged an application for a Safe Haven Enterprise (Subclass 790) visa.
In general terms, the applicant raised claims to fear harm in Afghanistan for reasons of his ethnicity, his extended absence from Afghanistan, certain family disputes and the dangerous security situation that existed in that country. In his visa application, the applicant declared that he was born in and a citizen of Afghanistan. He declared that he was not a “current citizen or national of any other country”. He claimed that both his mother and father were citizens of Afghanistan and that Afghanistan was the only country that he was able to legally enter or in which he could legally reside.
He claimed that that he fled Afghanistan for Pakistan when he was…

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 GLX18 v Minister for Home Affairs 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 1882
Decision Date: 10 July 2020

CaseChat Overview and Summary

The applicant, GLX18, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The dispute concerned the applicant's claims for protection based on a fear of persecution in their country of origin. The matter was heard before Judge Jarrett in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims for protection, particularly in light of the country information available at the time of the decision. This involved determining whether the delegate had made any errors of law in their assessment of the applicant's credibility and the objective realities of the situation in the applicant's country of origin.

Judge Jarrett found that the delegate had failed to adequately consider certain aspects of the applicant's evidence and had not properly engaged with the available country information in relation to the specific risks faced by individuals with the applicant's profile. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a comprehensive and logical assessment of all relevant evidence and information. The delegate's failure to properly weigh all material before them constituted an error of law.

Consequently, the Court quashed the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders