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). |
| 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…
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- Case
- [2019] FCCA 2753
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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