GSM18 v Minister for Immigration - [2020] FCCA 2225

FEDERAL CIRCUIT COURT OF AUSTRALIA

GSM18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2225

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

BEL16 v Minister for Home Affairs [2019] FCA 1678

AWU16 v Minister for Immigration and Border Protection [2020] FCA 513

Applicant:

GSM18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 683 of 2018

Judgment of:

Judge Vasta

Hearing date:

28 July 2020

Date of Last Submission:

28 July 2020

Delivered at:

Brisbane

Delivered on:

28 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr M. Gou

Solicitors for the Applicant:

ESTRIN SAUL LAWYERS

Counsel for the First Respondent:

Ms K. Hooper

Solicitors for the First Respondent:

AUSTRALIAN GOVERNMENT SOLICITOR

ORDERS

That the Applications filed 21 December 2018 and amended on 19 June 2020 is dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00

IT IS NOTED:

A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. PEG 683 of 2018

GSM18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 4 December 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, GSM18, a protection visa. On 21 December 2018, the Applicant asked this Court to review that decision.
The background of the matter is that the Applicant is a national of Iran. He arrived in Australia in 2013. The claims are these: when he arrived in Australia, and at the time of his Safe Haven Enterprise Visa application, he had said that he was born in Tehran, was of Persian ethnicity, and had no religion.
He said that he is one of three brothers, and that his younger brother still lives in Tehran with his parents, but his older brother travelled with him to Australia. He said that he had studied at university in Iran and had begun his own business as a personal trainer. From 2010 to 2012 he undertook his military service in Tehran, but, notwithstanding he was completing his military service, he still had time to work as a personal trainer at various gyms.
After he had concluded his military service, he said that he and his brother developed a good reputation as personal trainers and that what had occurred was that some people had heard about their reputations and began calling them, telling them to stop their work as personal trainers. He said that this intensified during the winter of 2013 and he estimates that he was called…

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 2225
Decision Date: 28 July 2020

CaseChat Overview and Summary

The applicant, GSM18, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant the applicant a visa. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's eligibility for the visa.

Judge Vasta found that the delegate had properly considered all relevant factors and had not taken into account any irrelevant considerations. The Court determined that the delegate's assessment of the applicant's circumstances was open to them on the evidence before them and did not constitute a jurisdictional error. The Court therefore dismissed the applications.

The applications filed by the applicant were dismissed, and the applicant was ordered to pay the costs of the First Respondent, fixed in the sum of $7,467.00.

Orders

Orders of the court

That the Applications filed 21 December 2018 and amended on 19 June 2020 is dismissed.

That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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