GNW18 v Minister for Home Affairs - [2019] FCCA 2753

FEDERAL CIRCUIT COURT OF AUSTRALIA

GNW18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2753

Catchwords:
MIGRATION – Application for a Safe Haven Enterprise Visa – Authority erroneously made adverse findings as to credibility – erroneous adverse findings on credibility could have changed the result of the exercise of power – jurisdictional error established – decision quashed.

Legislation:

Migration Act 1958 (Cth), ss.473CB(1), 473DC(1).

Cases cited:

Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216.

Hossain v Minister for Immigration (2018) 359 ALR 1.

Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599.

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.

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

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

First Applicant:

GNW18

Second Applicant:

GNY18

Third Applicant:

GNW18 AS LITIGATION GUARDIAN FOR GNX18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 1288 of 2018

Judgment of:

Judge Egan

Hearing date:

4 September 2019

Date of Last Submission:

4 September 2019

Delivered at:

Brisbane

Delivered on:

26 September 2019

REPRESENTATION

Counsel for the Applicant:

Mr M. Black

Solicitors for the Applicant:

Salvos Legal

Counsel for the Respondents:

Mr J. Byrnes

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the further amended application for review filed on 4 September 2019 be granted.
That the decision of the Immigration Assessment Authority made on 27 November 2018 be quashed.
That a writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the applicants’ application for review of the second respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.
That for the purpose of the Immigration Assessment Authority determining the applicants’ application, that it be constituted differently from the Authority which handed down the decision on 27 November 2018.
That the first respondent pay the applicants’ costs of and incidental to the proceedings fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1288 of 2018

GNW18

First Applicant

GNY18

Second Applicant

GNW18 AS LITIGATION GUARDIAN FOR GNX18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The first applicant (male applicant 1) and the second applicant (female applicant 2) are citizens of Iran. They arrived in Australia on 9 September 2013. The third applicant is a child born of the union of the first applicant and the second applicant on 27 November 2013.
On 15 February 2017, the applicants lodged a combined application for a Safe Haven Enterprise Visa (SHEV).
On 29 March 2018, a delegate of the Minister refused to grant the visa. After such refusal, the matter was referred to the Immigration Assessment Authority (the Authority) for review.
On 27 November 2018, the Authority affirmed the decision of the delegate to refuse the SHEV.
On 14 December 2018, 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 2753
Decision Date: 26 September 2019

CaseChat Overview and Summary

The Federal Circuit Court heard an application by GNW18 and another applicant (the applicants) seeking judicial review of a decision made by the Minister for Home Affairs (the Minister) to refuse their application for a Safe Haven Enterprise Visa. The core of the dispute concerned adverse credibility findings made by the delegate of the Minister regarding the applicants' reasons for leaving Iran.

The legal issues before the Court were whether the delegate made jurisdictional error in their assessment of the applicants' claims. Specifically, the Court was required to determine if the delegate erroneously characterised the applicants' stated fears arising from a cross-religious marriage as a "later claim" when it had been articulated earlier in the protection visa process. Furthermore, the Court had to consider whether the adverse credibility findings made by the delegate, which led to the refusal of the visa, were based on a proper and accurate assessment of the evidence.

Judge Egan found that the delegate had indeed made jurisdictional error. The Court reasoned that the delegate wrongly described the applicants' fear of retaliation due to a Sayyid/non-Sayyid marriage as a "later claim," when evidence indicated this fear had been articulated in a statement dated 28 May 2014, predating other statements relied upon by the delegate. This mischaracterisation, coupled with the broad adverse credibility findings at paragraph [27] of the delegate's reasons, meant that the delegate had not properly considered the entirety of the applicants' evidence. The Court concluded that these erroneous findings could have altered the outcome of the exercise of the Minister's power.

Consequently, the Court quashed the decision of the Minister to refuse the Safe Haven Enterprise Visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The first applicant’s expressed fears arising out of his cross-religious marriage to his wife, as were set out in his statement dated 28 May 2014, was the subject of consideration, and the making of erroneous findings, by the Authority at [21] and [22] of its reasons, where it was said: [21] Thirdly, information before me indicates that earlier in the protection visa process the applicants presented a quite different reason for their decision to leave Iran. On 4 November 2014 Applicant 1 provided information to the Australian Federal Police (AFP) that the reason they came to Australia was because Applicant 2’s family was involved in illegal drug running and weaponry.[22] Their later claim – that they feared Applicant 2’s relatives because of their opposition to the applicants’ Sayyida/non-Sayyid marriage – is a significant change in his evidence. When questioned about that earlier evidence, Applicant 1 stated in his SHEV interview that guns aren’t a big deal over there and when he was interviewed by the AFP on Christmas Island he told them he didn’t know anything more about Applicant 2’s family’s involvement in those matters just that they were dangerous people. It is clear from a reading of the above paragraphs in the reasons of the Authority that the Authority was in error when it found, as it did at [22], that the applicants’ fears of violent retaliation by applicant 2’s relatives was a ‘later claim’. It is clear that such claim had been made in the first applicant’s statement of 28 May 2014, that being at a much earlier time than either the 4 November 2014 statement to the AFP, or when it was later referred to by the first applicant in paragraphs 6 – 24 inclusive of his statement dated 4 February 2017, [2] or by the second applicant in paragraphs 7 – 19 of her statement dated 4 February 2017. [3] [2] CB pages 149 – 151. [3] CB pages 152 – 153. The Authority, at [27] of its reasons, made adverse credibility findings against the applicants as follows:[27] Overall, having considered the entirety of their evidence, I am not satisfied that the applicants have provided a truthful account of the circumstances which led them to leave Iran. I have had regard to the generally unsatisfactory nature of their evidence and when this is taken into consideration along with the various discrepancies, changes, omissions and implausible aspects of their claims, I do not accept the applicants’ account of what led them to leave Iran. The assertion that it is customary for Sayyids to marry only within the Sayyid culture has been repeatedly made both by, and on behalf of, the applicants but as the delegate noted, no country information has been provided in support of the claim that they will suffer persecution amounting to serious harm from state and non-state actors on account of the marriage between a Sayyid and a non-Sayyid. In any case, even if I were to accept that members of Applicant 2’s family did not support her marriage to Applicant 1, I do not consider their claims about what flowed from this to be credible.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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