EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 27 June 2022
• Neutral Citation: [2022] FCA 736
• Date: 27 June 2022
• Court: Federal Court

Federal Court of Australia

EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736

Appeal from:	EIL18 v Minister for Immigration & Anor [2020] FCCA 2675
File number(s):	WAD 204 of 2020
Judgment of:	KENNY J
Date of judgment:	27 June 2022
Catchwords:	MIGRATION – leave to raise new grounds of appeal – whether legally unreasonable for Immigration Assessment Authority not to invite the appellant for an interview under s 473DC(3) of the Migration Act 1958 (Cth) – where the appellant’s request to adjourn a telephone interview before the delegate was refused and requests to be interviewed by the Authority were declined – no facility in English language – extended period of detention prior to invitation to interview before delegate – invitation fixed shortly before trial resulting in no penalty for criminal offence – where evident informational deficiencies in the material the basis of adverse findings – appeal allowed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 27 Migration Act 1958 (Cth) ss 5AA, 5AAA, 5H(1), 5J, 36(2)(a), 36(2)(aa), 36(2A), 473CA, 473CB, 473CC, 473DB, 473DC, 473DD, 473FA(1) Federal Court Rules 2011 (Cth) r 4.12
Cases cited:	Abebe v The Commonwealth of Australia [1999] HCA 14; 197 CLR 510 ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 ATD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 576 BQQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 268 BRF038 v Republic of Nauru [2017] HCA 44; 349 ALR 67 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 BYR17 v Minister for Immigration & Border Protection [2018] FCA 1324 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 DFL16 v Minister for Immigration and Border Protection [2021] FCA 936 District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33 DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; 267 FCR 69 EEE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 629 ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; 283 FCR 164 FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 1571; 140 FCR 137 Minister for Immigration & Multicultural & Indigenous Affairs v WAAG [2003] FCAFC 60 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534 Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49; 269 FCR 70 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 NBMB v Minister for Immigration and Citizenship [2008] FCA 149; 100 ALD 118 Northern Land Council v Quall (No 3) [2021] FCAFC 2 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425 SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120; 129 FCR 137 SZBLY v Minister for Immigration and Citizenship [2007] FCA 765; 96 ALD 70 SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	119
Date of hearing:	15 December 2021
Counsel for the Appellant:	Mr M Albert (pro bono)
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		WAD 204 of 2020
BETWEEN:	EIL18 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	KENNY J
DATE OF ORDER:	27 JUNE 2022

THE COURT ORDERS THAT:

1. The appellant have leave to amend his notice of appeal to replace the grounds of appeal with the two proposed new grounds set out in his proposed amended notice of appeal.

2. The appeal be allowed.

3. Order 1 of the orders of the Federal Circuit Court of Australia made on 18 August 2020 be set aside and in lieu thereof it be ordered that:

   1. a writ of certiorari be issued to the Immigration Assessment Authority quashing the decision made on 20 July 2018 to affirm the decision not to grant the appellant a Safe Haven Enterprise visa;

   2. a writ of mandamus be issued to the Immigration Assessment Authority requiring it to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law.

4. On or before 4:30 pm on 11 July 2022, the parties file and serve submissions of no more than 3 pages as to the appropriate order as to:

(a) the costs of the appeal; and

(b) if relevant, the costs of the proceeding in the Federal Circuit Court of Australia.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (now the Federal Circuit...