ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] FCAFC 44
• Date: 26 March 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44

Appeal from:	ESQ17 v Minister for Immigration & Anor [2020] FCCA 472
File number:	WAD 78 of 2020
Judgment of:	REEVES, BANKS-SMITH AND ANASTASSIOU JJ
Date of judgment:	26 March 2021
Catchwords:	MIGRATION – appeal of a decision of the Federal Circuit Court of Australia – where the Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) to affirm a decision of a delegate of the Minister to refuse the appellant’s application for a protection visa – where the Authority did not exercise discretion under s 473DC of the Migration Act 1958 (Cth) – whether the primary judge erred in failing to find the Authority was legally unreasonable in failing to exercise discretion – where the Authority refused to consider an “unarticulated claim” raised by the delegate – whether the unarticulated claim clearly emerges from the materials before the Authority – whether primary judge erred in finding that unarticulated claim had been withdrawn or abandoned – appeal allowed
Legislation:	Migration Act 1958 (Cth) Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Cases cited:	APE16 v Minister for Home Affairs [2020] FCAFC 93 AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 BYR17 v Minister for Immigration and Border Protection [2018] FCA 1324 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134; [2018] FCAFC 14 DOU16 v Minister for Home Affairs (2019) 272 FCR 358; [2019] FCAFC 212 ESQ18 v Minister for Immigration & Anor [2020] FCCA 472 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32 MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	73
Date of hearing:	15 September 2020
Counsel for the Appellant:	Dr A McBeth
Solicitor for the Appellant:	Estrin Saul Lawyers
Counsel for the First Respondent:	Mr N Woods
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a Submitting Notice

ORDERS

		WAD 78 of 2020
BETWEEN:	ESQ18 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	REEVES, BANKS-SMITH AND ANASTASSIOU JJ
DATE OF ORDER:	26 March 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the primary judge made on 6 March 2020 be set aside.

3. The appellant’s application for judicial review be remitted to the Federal Circuit Court of Australia to be reheard according to law.

4. The first respondent pay the appellant’s costs of the appeal to be taxed failing agreement.

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

ORDERS

		WAD 78 of 2020
BETWEEN:	ESQ18 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	REEVES, BANKS-SMITH AND ANASTASSIOU JJ
DATE OF ORDER:	12 May 2021

THE COURT ORDERS (IN ADDITION TO ORDERS 1, 2, 3 AND 4 OF 26 MARCH 2021) THAT:

1. The Order made on 26 March 2021 be varied pursuant to rule 39.05(f) of the Federal Court Rules 2011 (Cth) as follows:

1.1 Orders 2 and 3 be revoked and replaced with the following order:

“The orders of the primary judge made on 6 March 2020 be set aside and in lieu thereof:

1. An order in the nature of certiorari be issued to the second respondent quashing the decision made on 24 August 2018 (IAA reference number: IAA18/04386).

2. The matter be remitted to the second respondent for the making of a decision according to law.

3. The first respondent pay the applicant’s costs of the application filed in the Federal Circuit Court fixed in the amount of $7,467.”

1.2 Order 4 be varied to read “The first respondent pay the appellant’s costs of the appeal fixed in the amount of $12,600.00”.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. The appellant has sought to challenge two aspects of a judgment of the Federal Circuit Court of Australia (ESQ18 v Minister for Immigration & Anor [2020] FCCA 472 (ESQ18)) whereby his application for judicial review of a decision of the Immigration Assessment Authority (the Authority) was dismissed. The Authority, in turn, affirmed a decision of a delegate (the delegate) of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) which resulted in the refusal of the appellant’s application for a protection visa.

2. The appellant’s notice of appeal alleges that the primary judge made two process-related errors in his judgment. The first alleges that his Honour failed to find that the Authority’s failure to consider whether to exercise its discretion to seek further information from him pursuant to s 473DC of the Migration Act 1958 (Cth) (the Act) was legally unreasonable. The second alleges that his Honour failed to find error in the Authority’s failure to consider the risk of serious harm that he would face in Afghanistan as a failed asylum seeker returning from a western country.

3. For the reasons that follow, ground of appeal 1 will be dismissed, but ground of appeal 2 will be upheld. Orders will be made accordingly.

FACTUAL BACKGROUND

4. The appellant is a single 25-year-old male born on 19 November 1995 in Parachinar in the North West Frontier Province of Pakistan. He ascribes to the Shia Muslim faith and is of Hazara ethnicity.

5. His parents are Afghani citizens who fled to Parachinar during the Afghan civil war. Before fleeing they lived in the Khoshi District in the Province of Logar in eastern Afghanistan. As the child of...