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

Federal Court of Australia

ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44 Appeal from: ESQ18 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from the materials before the Authority – whether primary judge erred in finding that unarticulated claim had been withdrawn or abandoned – appeal allowed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