ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27

ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27

The Authority's reasons, fairly read, showed that it appreciated and took into account the rebuttal character of the DFAT Rebuttal material, considered the fact that the material could not have been provided to the Minister before the decision, and made an intelligible evaluative judgment that the material was general, duplicative country information which did not justify a finding of exceptional circumstances under s 473DD(a). The Authority's reasoning was consistent with AUS17, did not disclose misconstruction of s 473DD or failure to engage in an active intellectual process, and the Appellant established no error by the primary judge.

Jurisdiction
Australia
Judgment Date
05 March 2021
Procedural Posture
Migration Appeal From Dismissal of Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal to the Full Court of the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['immigration Assessment Authority' 'new Information' 'exceptional Circumstances Under S 473 Dd' 'protection Visa' 'jurisdictional Error' 'evaluative Judgment']
['migration' 'administrative Law' 'judicial Review'] ['immigration Assessment Authority' 'new Information' 'exceptional Circumstances Under S 473 Dd' 'protection Visa' 'jurisdictional Error' 'evaluative Judgment']

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Procedural Posture

Migration Appeal From Dismissal of Judicial Review of an Immigration Assessment Authority Decision Affirming Refusal of a Safe Haven Enterprise Visa / Appeal to the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the primary judge erred by failing to find that the Immigration Assessment Authority misconstrued the exceptional circumstances test in s 473DD(a) of the Migration Act 1958 (Cth).' 'Whether the Authority failed to engage in an active intellectual process when it considered the New DFAT Report but did not consider the DFAT Rebuttal material.' 'Whether, in light of AUS17, the Authority failed to take into account its assessment under s 473DD(b)(i) when assessing exceptional circumstances under s 473DD(a).']

Ratio Decidendi

The Authority's reasons, fairly read, showed that it appreciated and took into account the rebuttal character of the DFAT Rebuttal material, considered the fact that the material could not have been provided to the Minister before the decision, and made an intelligible evaluative judgment that the material was general, duplicative country information which did not justify a finding of exceptional circumstances under s 473DD(a). The Authority's reasoning was consistent with AUS17, did not disclose misconstruction of s 473DD or failure to engage in an active intellectual process, and the Appellant established no error by the primary judge.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The Appellant pay the Respondents' costs of and incidental to the appeal."]